What is going on?
The US Supreme Court ("USSC") is deciding whether two laws are constitutional: California's Prop 8, which amended the state's Constitution to declare that marriage is only between a man and a woman, and the federal Defense of Marriage Act ("DOMA") which says that a state does not have to recognize another state's definition of marriage and "marriage" for federal purposes means one existing between a man and woman.
What do you mean, "constitutional?"
The US Constitution defines certain rights, whether expressly (e.g., free speech under the 1st Amendment) or indirectly (e.g., abortion under case law - Roe v. Wade - that said such a right "emanated" from the "penumbra" of the Fifth Amendment of the Constitution). A state may grant more rights than what is provided by the federal Constitution, but it may not grant less. If it does so, its law is unconstitutional.
So how will the USSC handle gay marriage?
First, as an equal protection issue. Certain classes of people have certain characteristics by which they can be identified. As a example, race. You cannot deny a person access to education because he is Black (Brown v. Board of Education). You can't deny a job to a woman because she might get pregnant and have to take time off. You may not like beaners, wops, kikes, chinks, gooks, polacks, or micks coming into your store - but you cannot refuse to serve them based upon their national origin.
Well, gays can't marry - isn't that unconstitutional?
Children cannot, either. Nor can first cousins in the state of California (but perfectly okay in Tennessee). Gays can marry - just not each other. But a law cannot prohibit a Black woman and an Asian man from marrying. Why?
The answer lies in the class of people who are claiming discrimination. Based upon the class of persons in question, the USSC will apply different levels of scrutiny to determine whether a law is unconstitutional.
If a class of persons are what is called a "suspect" or "protected" class, then USSC applies strict scrutiny. This means for a law like Prop 8 or DOMA to be constitutional (if strict scrutiny applies), it must demonstrate: (a) there is a compelling government interest in having it; (b) the law cannot be too broad but must be narrowly tailored to achieving its purpose; and (c) the law must be the least restrictive means to achieving its stated policy.
Otherwise, the USSC applies intermediate scrutiny (the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest) or rational basis (the government has a legitimate reason for a law or regulation that is rationally linked to it ).
So which level of scrutiny will the USSC use?
Well, it depends on how they classify a class of persons defined by their sexual orientation/identity. Of course, the Court could simply state that the two laws fail the lowest form of scrutiny, rational basis, and leave it at that. If they don't, however they have to define the class to support whether intermediate scrutiny or strict scrutiny will be used. And then apply the appropriate level.
How the heck do they classify people?
Good question. They sort of, well . . . they just do. Laws alleged to discriminate on the basis of race warrant strict scrutiny. Those involving gender warrant intermediate.
Has sexual orientation come up before? Oh yes - and the USSC has not said what class of people this means, tending to hold to a more rational basis (Romer v. Evans and Lawrence v. Texas) but not explicitly stating what they were using. In California, its own Supreme Court said strict scrutiny should be used (In re Marriage Cases). On a federal level , a lower court said intermediate scrutiny should be used (Windsor v. United States).
Okay, my head is spinning. What about this "due process" thing?
Marriage is more than a "dweam wiffin a dweam, a pwomise wiffin a pwomise" (apologies to fans of The Princess Bride) - it is a fundamental right and the government cannot limit your fundamental rights on some arbitrary whim that deprives you of "life, liberty, and property." Thus, if you are charged with a crime, there has to be a public trial in which the State must succeed in the necessary burden of proof before locking you up. They cannot just haul you away.
But simply denying a right may not be a violation of due process. Take freedom of speech. Important, indeed - but not absolute. Whereas you can wear a t-shirt saying, "F**k the Draft" in a courtroom (Cohen v. California), you cannot yell, "Fire!" in a crowded theater when none such danger exists (thank you, Oliver Wendell Holmes for that musing in Schenck v. United States).
So, with marriage, it has been held that denial of that right is a violation of due process under different circumstances. Interestingly enough, laws by which repeat criminal offenders were castrated - whether physically or chemically - were held to violate due process since it deprived a person of the right to procreate, which was seen as fundamental to marriage. One of the due process arguments is the protection of marriage for procreation and families.
This is complicated . . .
Of course it is. If it weren't, no one would be arguing it before the USSC. There is also a standing issue, but I am not talking about whether same-sex couples can remain upright at their weddings. God knows from revelry the night before, a lot of couples - gay or straight - cannot.
Lucky for you I found a great article by a person I consider to be one of our country's great constitutional alw scholars, Erwin Chemerinsky, that talks about what is happening today. I may not be on the same side of politics as him, but there is no doubt as to his erudition. So, to learn more, give it a read.
|Erwin, the Bad Boy of Con Law himself|