Demagogue has a post by Arnold P. California titled In California, Only Virgins Can Marry that skillfully analyzes the legal aspects the the California Supreme Court review of the ban on same-sex marriage and gets at the fundamental legal question still to be decided by the Court.
The argument, in short, is that since the Supreme Court is not free to second-guess the wisdom of the Legislature (or the initiative of voters), only to assess the legitimacy of the government's interest in marriage and the scope of its restrictions on it, the standard of review that the Court itself chooses to apply is crucial to the eventual decision. The Court may choose from:
- Strict scrutiny: applies to fundamental constitutional rights or suspect classifications (such as race) and requires a compelling state interest furthered by narrowly tailored means.
- Intermediate scrutiny: applies to such matters as sex-based classifications, restrictions based on status as a non-marital child, and affirmative action programs, and requires an important state interest furthered by substantially related means (a stricter version of this is called "heightened scrutiny").
- Rational basis review: applies to everything else and requires only a legitimate state interest furthered by rational means.
Massachusetts has decided to use strict scrutiny, all others (including the Californa Court of Appeals) have settled on rational basis review.
I believe that, although there is room for the California Supreme Court to overturn the appeals court ruling under the rational basis test, they would be wrong to do so. Like blacks, gays have suffered violent and invidious discrimination. Unlike blacks, gays continue to suffer de jure discrimination. It is irrational to conclude that discrimination against blacks is suspect and deserves strict scrutiny yet discrimination of gays does not. It is time to recognize that sexual orientation (and gender identity, when a relevant case comes up) are “suspect classifications” in California and deserve strict scrutiny.
It is worth remembering that religious belief is intrinsically irrational (i.e. beyond the reach of the scientific method in assessing its validity), and though the public has a protected right to believe in it, the Court has a duty not to. Religion cannot justify bigotry, no matter how widely held.
And yet, and yet. The Justices, having no army of their own, must trust that the pen is mightier than the sword. It is naive to believe that they do not worry from time to time about running out of ink...
Posts
3 comments:
I found more (indeed exhaustive) information on the origins of judicial review standards (and strict scrutiny in particular) from a fascinating paper by Prof. Stephen A. Siegel, a Distinguished Research Professor and Associate Dean for Research, Scholarship, and Faculty Development at the DePaul University College of Law.
It is unnerving to realize just how new our constitutional protections are (as we now understand them), and how the U.S. Supreme Court more or less made them up on its own. Defense of the individual against the tyranny of the majority is only a half-century old!
The unpublished draft paper I found forbids me from quoting or citing it without the author's permission (which I did not seek and consequently do not have), but you can find it yourself easily enough (publicly available and free of charge) by googling the keywords "strict scrutiny, first amendment, equal protection, free speech, compelling interest, fundamental intersts, Warren Court" and following the first link that you see.
Don't wait, as once I'm allowed to cite it, you might no longer have free access to it! You know those law journals...
To my own great surprise, it seems the California Supreme Court Justices (4 of them anyway) agreed with me! According to the New York Times...
“With few exceptions, courts considering suits from gay men and lesbians claiming legal discrimination of all sorts have applied a relaxed standard of scrutiny under which the government must show only that the challenged law had a rational basis.”
“In Thursday’s decision, the Supreme Court ruled that the correct standard of review for plaintiffs claiming discrimination on the basis of sexual orientation is “strict scrutiny,” the standard used in race-discrimination cases. Under that standard, the government must demonstrate that it has a compelling interest for the law it is defending and that the distinctions drawn by the law are necessary to protect the interest.”
Maybe the ghosts of Plessy v. Ferguson still echo in the minds of the Justices. After all, who wants to explain to their grandchildren why they were on the wrong side of history?
Almost forgot...
Hat tip to Brendan for the NY Times reference in the previous content. Without him, I wouldn't even have a blog!
Post a Comment