Julian Sanchez, the always incisive assistant editor at Reason magazine, has an interesting article about yesterday's California Superior Court ruling that struck down the state's ban on gay marriage as forbidden by that state's constitution. He points out something interesting about the judge's ruling:
But perhaps the most interesting part of Judge Kramer's opinion has received surprisingly little attention. Kramer applied the lowest level of judicial scrutiny when he considered whether marriage discrimination was rationally related to any legitimate state purpose. In this, he followed the structural logic of such Supreme Court decisions as Romer v. Evans, which struck down an anti-gay initiative in Colorado. But Kramer also ruled that this lowest level of scrutiny was not, in fact, the proper level to apply.
After carrying out his "rational purpose" analysis, Kramer asserted that California's ban on same-sex marriage was actually subject to "strict scrutiny," which "applies where a legislative classification creates a 'suspect' class or impinges on a fundamental human right." Both, said Kramer, were true of the marriage ban: Marriage is a fundamental right, as the Supreme Court found in Loving v. Virginia, and discrimination according to gender makes use of a "suspect class."
This is interesting for several reasons. The Romer decision did indeed apply the "rational basis" test, the lowest level of scrutiny, but still found the Colorado law was unconstitutional even under that relaxed standard, just as Judge Kramer did in the California case. Under the rational basis test, there is a high degree of presumption in favor of the law's validity and against striking it down. Controlling precedent says that the "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." But even with that strong presumption, the court ruled in Romer that the law, which forbid cities and localities from enacting any legisltation that protected the rights of gays, was "inexplicable by anything but animus" and therefore not constitutional even given the presumption of constitutionality it enjoyed under the rational basis standard.
A stronger form of scrutiny can be triggered a couple of ways, either because it involves what the court terms a "fundamental right", as was determined in Loving v Virginia with the fundamental right to marry, or because it involves legislation that impacts on a "suspect class". The supreme court has set out several attributes that would indicate that a given group is a "suspect class" deserving of a heightened level of scrutiny when dealing with laws that target them:
A. The group must have a history of deliberate unfair treatment under the law.
B. The group must share an immutable trait that has no bearing on their ability to function in society, and
C. The group must be politically weak and thereby unlikely to be able to muster the votes to protect itself in a legislative setting.
In a nation where, until a mere 2 years ago, gays could be thrown in prison for having sexual relations within the privacy of their own home, while the very same act between heterosexuals was not punished, there can be little reasonable doubt that gays meet those three criteria and therefore laws which target them specifically should be subject to strict scrutiny under the Supreme Court's various rulings on that question. And the Supreme Court has been moving toward that designation in recent years. As Justice O'Connor noted in her concurring opinion in the Lawrence case,
When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.
We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships.
By either of those standards, then, a strict scrutiny standard of review could be triggered. Also, as Sanchez noted, the fact that marriage has been explicitly declared a "fundamental right" in Loving would also trigger strict scrutiny. But Kramer ruled that even if one applies the most relaxed standard of review, granting strong presumption to the constitutionality of the law in question, California's ban on gay marriage still didn't pass muster (under state law, not federal law, it must be noted). So the obvious question is, what does the California state constitution say that makes such a law unconstitutional in that state, according to the judge? That can be found in the Declaration of Rights included with the California state constitution, Article 1 Section 7:
A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.
The state tried to argue that because the law applied equally to men and women - each were equally free to marry a member of the opposite sex and equally unfree to marry a member of the same sex - there was no gender discrimination, but the judge rightly did not accept this argument. He pointed out that this same argument was used and rejected by the court in Loving and by the California state courts in another case because "the right to marry is the right of individuals", not a right of groups. This is precisely the argument I have long been making and it's nice to see a court agree with it.
In short, it doesn't look to me like this case will be all that easy to overturn by the California Supreme Court. There is a pretty clear provision of the California constitution that can very reasonably be interpreted as prohibiting this type of discrimination, and the judge determined that even under the most lenient review standard, the law still did not pass muster. The judge seems to have covered all of his bases in this decision, making it difficult to overturn. This will be interesting to watch on appeal.
Hat tip to Josh Claybourn, who asked me to critique a law review article he is working on concerning state laws against adoption by gays. The combination of that article and the Sanchez article triggered my thinking on this issue.
I smell an Amendment to the CA Constitution cooking... Much like the one passed this past election here in Ohio. I hope it does not pass, if only so that I can know that not every state is a stupid and mean as Ohio.
I'd be interested in seeing what Claybourn has to say about "state laws against adoption by gays"
Well hopefully it'll be published soon. It was a well written article, mostly dealing with the application of the levels of review according to various precedents. It's solid scholarship.
Ed--as you wish. I don't go to Claybourn's site very often, but, when I went there, I got the impression that he was essentially an anti-gay nut.
1) It's more of a glorified essay, but hopefully still interesting.
2) I'm far from an "anti-gay nut." Perhaps you're confusing me with another ITA contributor? At any rate, I reject that label.
No, Josh is certainly neither anti-gay, nor a nut. I can't imagine what you've read that would give that impression.
As you wish. It's been a while since I read Josh Claybourn (I did it last when he was at joshclaybourn.com) but when I did read his blog I certainly was led to the impression that he was not exactly in favor of equal rights for gay people. And, in my book, that would make him an anti-gay nut. But, then again, as far as I'm concerned anyone who opposes equal rights for gay people is not only anti-gay, but also a nut. I'm all in favor of having my impression of Mr. Claybourn proved wrong. Mr. Claybourn?