In my teaching, when we talk about Roe v. Wade, I always emphasize that three questions should be kept separate: whether is abortion immoral, whether should abortion be illegal, and whether statutes restricting abortion are unconstitutional. (It would be more accurate to say “should statutes restricting abortion be held unconstitutional” to distinguish this from “have statutes restricting abortion been held unconstitutional”). My topic today, in wake of Perry v. Schwartzenegger, is whether statutes which do not permit same-sex marriage should be held unconstitutional. And my reason for discussing it is that legal affairs journalism from the MSM is often so weak, and the topic so politicized, that I’d be surprised if other discussions cleanly separate out constitutionality from desirability.
The constitutional question involves the Fourteenth Amendment, which was ratified after the Civil War in response to attempts by former Confederate states to recreate slavery in all but name through statutes regulating freedmen (as they were called). In section one, we find two clauses relevant to our question, the Due Process Clause and the Equal Protection Clause. Both are contained in the following sentence:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
During a period leading up to the Great Depression, there were Supreme Court cases, the most notable of which was Lochner v. New York, in which the Court articulated a doctrine known as “Substantive Due Process.” Ordinarily one would think that due process involves whether the proper procedures are followed. But suppose that there are deprivations of life, liberty or property which are in their very nature so repellent, so wrong, that the proper procedure for doing them is not to do them at all? With this thought, the Supreme Court invalidated various labor laws as interfering with “freedom of contract,” as intolerable deprivations of liberty for which no process could be adequate. At the same time it also invalidated various laws interfering with parenting and the education of children as similarly intolerable deprivations of liberty. In today’s lingo, the Supreme Court was a libertarian for awhile.
The Great Depression changed all that, and the Court backpedalled on striking down economic regulations on substantive due process grounds. Though this was clearly done out of deference to progressive legislation, today’s rhetoric against judicial activism most frequently heard among conservatives had its origins here. The Court’s views on interfering with parenting, however, remained unchanged, leaving the road to Roe open and clear.
The way the Great Depression changed the Court’s thinking can be seen in the famous fourth footnote to the case United States v. Carolene Products (which was not, however, a Fourteenth Amendment case). There the Court announced that it would presume a statute was constitutional unless one or more of three factors were present: the statute seems to fall afoul of a specific constitutional prohibition, for example, in the Bill of Rights; the statute restricts voting; or affects a “discrete and insular minority.” The first of these is self-explanatory; the other two indicate that the Court will rely on democratic processes except in those situations where they operate to thwart themselves or to oppress a minority. This case brings to our attention the notion of “levels of scrutiny” and makes a first pass at indicating what conditions will heighten it.
Bringing us to the present, the doctrine appears to be that there are three levels of scrutiny possible, triggered by what the statute being challenged does. In essence, a level of scrutiny determines what the government must prove in order for the statute to pass muster, to be held constitutional. No level of scrutiny guarantees that the Court will hold the statute constitutional or unconstitutional, but they do affect the odds mightily.
If no special factors like those mentioned in Carolene Products are present, the Court uses the lowest level of scrutiny, the presumption of constitutionality, which is called “rational basis review.” Here the government need only show that the statute serves a legitimate state interest (does something governments do) and that the statute is a means to that end. However, the Court does not want to second-guess the legislature’s wisdom by inquiring too closely into whether it is a good means to that end, because this strays into judicial activism. It is enough if someone might think it a good means to an end. This will become important later when we return to Perry, because it explains why the state of California argued that it doesn’t have to prove that not permitting same-sex marriages furthers its legitimate interest in making sure there are children, and that the children are are raised happily.
To be continued…