by Jared Quient / Two Cathedrals / July 18, 2011
Opponents of Marriage Equality are getting desperate. Between last month’s awe-inspiring leadership by Governor Andrew Cuomo that led to the state legislature legalizing same-sex marriage in New York and the latest court decisions here in California, the march towards marriage equality for all seems for the first time in our history, wonderfully inevitable.
Heck, even the San Diego Union Tribune’s editorial board (not exactly a bastion for progressive ideals) realizes that opponents of Marriage Equality are running out of options.
And it’s about time. Marriage Equality is the single most important civil rights issue of our time and the fact that California is now lagging behind other states is sad. I remember how conflicted I felt the day after the 2008 election. As joyous as it was to see America electing its first African American President, California – one of the most progressive states in the union and a place I’ve called home for half my life – had passed one of the most discriminatory laws in the country. It just didn’t make sense.
Now, two and a half years later, the landscape has changed dramatically. Proposition 8 has been declared unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment by District Court Judge Vaughn Walker in San Francisco. This decision was followed by ridiculously bigoted attempts to undermine and vacate this decision because of the judge’s sexuality, which have failed miserably.
But the fight in the courts is by no means over. Given that we just celebrated Pride Weekend here in San Diego, I thought it might be valuable to take a look at where we are in this fight and where we might be headed.
A bit of legal background here is useful. When looking at a case that invokes the Due Process or Equal Protection Clause of the Constitution, there are three types of review courts can utilize to determine whether a government action violates that clause: rational basis review, intermediate scrutiny, and strict scrutiny.
Rational basis review is most deferential to government action, and as long as a court determines that the action rationally related to a legitimate government interest, the action is upheld. It is extremely rare for a court to hold that a government action is unconstitutional when using rational basis review – but more on that in a bit.
Intermediate scrutiny is the second level of scrutiny. In order to overcome the intermediate scrutiny test, the government must prove that the law or policy being challenged is substantially related to an important government interest.
Strict scrutiny, the most rigorous level of review, requires the government to prove that the action in question is necessary to achieve a compelling government interest. For a court to apply strict scrutiny the government action must either have significantly abridged a fundamental right or it must involve a suspect class. It is extremely difficult (some might say impossible) for any government action to survive strict scrutiny.
In his landmark decision that declared Proposition 8 unconstitutional, Judge Walker correctly characterized the right to marry as fundamental. This determination would typically trigger strict scrutiny analysis, which the action could not overcome. But before going through that analysis, Walker did something interesting.
He also held that while Proposition 8 clearly cannot survive strict scrutiny, it would not even pass rational basis review, asserting that “[e]xcluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
This is important. Some legal scholars have argued that by setting up his argument as a rational basis one rather than strict scrutiny, Judge Walker was speaking directly to Justice Anthony Kennedy.
Justice Kennedy is the swing vote on the Supreme Court, meaning that if the case eventually makes its way to the Supreme Court, Justice Kennedy is likely going to be the one that determines whether Judge Walker’s decision is upheld or reversed. This could be a good thing for marriage equality advocates because the rationale Walker used in his opinion seems to match up with the standard used by Justice Kennedy in Lawrence v. Texas. In Lawrence, Justice Kennedy wrote that a Texas law that made sodomy illegal was unconstitutional, holding that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” 539 U.S. 558, 578 (2003).
It will be some time before this case reaches the Supreme Court and there is some reason to believe that it will never even get there. That is because the case is currently being stayed (a legalese word meaning “held up”) at the Ninth Circuit Court of Appeals. The Ninth Circuit is awaiting a determination by the California Supreme Court as to whether the petitioners even have standing to appeal the case.
This issue of standing arose because the original defendants in the case, Governor Schwarzenegger and Attorney General Brown declined to defend the case and instead the official proponents of Proposition 8 — ProtectMarriage.com — intervened to become the lead defendants. While the district court allowed ProtectMarriage.com to intervene at the trial court level, it is by no means a slam-dunk that the California Supreme Court will allow them to continue their appeal to the Ninth Circuit. Oral arguments for this will likely take place this September.
The legal arguments related to whether ProtectMarriage.com have standing here are complex and are worth a post on its own – but the ramifications of the outcome are clear. If the California Supreme Court determines that the interveners do not have standing, that’s it: The case is closed and Proposition 8 is done – before the Ninth Circuit and the U.S. Supreme Court can even weigh in on it.
But if the California Supreme Court determines that the interveners do have standing, the Ninth Circuit will have to make a decision on the merits of the case and the journey towards the Supreme Court will continue.
It begs the question: If you are in favor of Marriage Equality, what would you rather see? Would you rather the California Supreme Court throw out the petitioner’s appeal on a procedural issue now – effectively ending the case and paving the way for Marriage Equality in California? Or would you rather see the case go to the Supreme Court and gamble that Justice Kennedy will continue down the path he started in Lawrence, giving him the chance to declare nationally that laws like Proposition 8 are unconstitutional and pave the way for Marriage Equality across the entire country?
And if you are not in favor of Marriage Equality – and this includes you Mr. President – it is time to get with the program. It is 2011, and you are on the wrong side of history.
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