There is much consternation on the Right about the upcoming gay marriage cases pending before the Supreme Court. Many are resigning themselves to the fact that the Court will side with homosexual couples come June. That may be so, but in order to get to that conclusion, the Court has to articulate a reason. They cannot just say that attitudes have changed and that gay marriage is now more acceptable than it was ten years ago. If that were so, then it would be reflected in laws changing through the democratic process. The LGBT community can trot out all the polls they want about its acceptability, but the only polls that count are in the voting booth in a democracy.
This is one of the reasons the Court took these cases in the first place. Besides the 6th Circuit and a District Court in Louisiana coming to completely opposite results than several other Circuits, in those other Circuits there is confusion as to why gay marriage bans must be done away with.
Most of the lower District Courts where they cases are initially heard have decided that gay marriage bans serve no legitimate state interest for a variety of reasons. Some courts have concluded that they simply do not reflect reality today, that there was considerable animus, that voters reacted to faulty information, that the legislative debate was rooted in faulty arguments, etc. As such, the states have failed the lowest level of judicial scrutiny- rational basis. However, the rationality of the regulation was acknowledged by the Department of Justice in the Windsor DOMA case upon which many of these decisions rely.
The Ninth Circuit has ruled that homosexuals are a suspect class. As such, any law that affects homosexuals has to be treated carefully under strict scrutiny. Here, the state can pass restrictions that impinge upon gays provided there is a legitimate state interest and they use the least restrictive means to achieve those interests. Obviously, outright bans are not the least restrictive means. Although not codified, a suspect class must satisfy four criteria: (1) there must be historical discrimination against the class, (2) they must have an immutable visible trait, (3) their defining characteristic cannot prevent them from being a meaningful member of society, and (4) they must be powerless to protect themselves through the political process. A perfect example is African-Americans who satisfy all four points. As for gays, there is ample evidence of historical discrimination, they certainly can’t change who or what they are (leaving aside the biology versus chosen lifestyle debate), and gays can certainly be meaningful members of society. That leaves political powerlessness. Obviously, they are not powerless in certain states that have voluntarily allowed gay marriage either through referendum, the legislative process or de facto acceptance of a judicial decree. Because they are not powerless uniformly throughout the United States- unlike blacks who were powerless throughout the United States, sometimes worse in northern states- this partially negates the argument they are or should be a suspect class. One can make an argument that women should be a suspect class, but they are not.
Conversely, the Fourth Circuit has ruled that marriage is a fundamental right and that any state regulation on that right must also survive strict scrutiny even if there is a rational basis and no suspect class is involved. There is a tangential string of cases dating back to 1888 where the Court has expressed the fundamental nature of marriage to an orderly society and democracy, indeed civilization. Lost in that argument is the fact that these oft-cited 14 cases largely involve procreation, something homosexuals are incapable of unless I missed some news somewhere.
Fundamental rights are rights that cannot be taken away. Some are specifically listed in the Constitution, particularly the Bill of Rights. Along the way, others have been “added.” For example, the right to interstate travel or right to privacy are nowhere to be found in the Constitution, but they are today considered “fundamental rights.” The right to privacy is no way implicated in the case of gay marriage since marriage is not a private action and the right to travel is only tangentially an issue. If marriage is a fundamental right- something that cannot be taken away- then this argument is ludicrous. Various states take away the right in the case of incestuous relationships, convicted pedophiles, polygamy and zoophilia.
If the regulation or law does not affect a suspect class- and gays are not a suspect class- nor does it affect a fundamental right (marriage is, at best, a quasifundamental right), then what are we left with? The only answer is judicial activism to effect a desired outcome on some notion of fairness and changing societal mores and perceptions. Along the way, the courts are unfortunately indicting the entire legislative or referendum process as being dysfunctional at best, or malicious at worst. Legislatures regularly pass wrong-headed laws. In a republican form of government, it is the democratic process that negates wrong-headed laws and policies, not courts. Nothing whatsoever is stopping any state legislature from revisiting gay marriage bans at some time in the future. Maine is the perfect example where voters rejected gay marriage one year only to approve it three years later. In effect, these courts are telling state legislatures and voters in states that they are wrong.
The cases before the Supreme Court originated in the Sixth Circuit which by a 2-1 vote upheld Michigan’s gay marriage ban. That decision correctly noted that Michigan was not regulating love, but that Michigan was motivated by the intended and unintended consequences of sexual relations, namely child-bearing. The good people of Michigan and other states may have come to the wrong conclusions and voted so, but from the constitutional standpoint, they in no way restricted a fundamental right, nor did they target a suspect class. In fact, in most instances, they did nothing except codify that which was already- defining marriage as between a man and a woman. In effect, until the Sixth Circuit ruled, courts were, in effect, insinuating that the people of states that adopted gay marriage were somehow inhabited by the “enlightened” while those that maintained bans were “backward rubes” incapable of making informed decisions on important sensitive subjects. Because this is wrong of courts, this decision should focus on process, not policy. Leave policy to the legislative process.