So recall that in many Fourteenth Amendment cases we have this thing called “levels of scrutiny” which determines how the courts will approach an issue, and more often than not, determines who wins.
Strict scrutiny: the challenged government action will be found unconstitutional unless it is shown to be a necessary means to a compelling state interest.
Intermediate scrutiny: the challenged government action will be found unconstitutional unless it is shown to be an important means to a substantial state interest.
Rational basis review: the challenged government action will be found unconstitutional only if it is shown that it is not a conceivable means to any legitimate state interest. The law must be, in some strong sense, irrational.
In Due Process “Fundamental Rights” cases, generally we use Strict Scrutiny, and generally the government loses. In Equal Protection (discrimination) cases, which level of scrutiny we use depends on what classification is being challenged.
Now every law classifies, “discriminates,” against somebody. Laws against homicide “discriminate” against murderers. Of course, stopping murder is a legitimate state interest. (Recall from the earlier post that the deference to government embodied in rational basis review had its origins in courts’ unwillingness to second-guess New Deal progressive programs). But the exemplar of the kind of discrimination the Equal Protection Clause was meant to prohibit is discrimination against African-Americans. So racial discrimination born of animus against the race is precisely what the government cannot do. Or, more precisely, a racial classification triggers strict scrutiny, and unless the government has to do it, for some unavoidable government purpose, it will be held unconstitutional.
This is the nub. If homosexuals are like a race, that ought to trigger strict scrutiny, and the government loses in attempts to regulate all things homosexual. If homosexuality is a pattern of moral conduct, that ought to trigger rational basis review, and the government wins because absent a suspect classification, the government generally wins. And this, I think, nicely captures the spirit of the debate between the two side on gay marriage politically.
With me so far?
But unfortunately, things are not so easy here. On rare occasions, the Supreme Court will apply rational basis review and yet hold that the government action is so irrational (generally because it is born of nothing but animus toward a group) that you cannot in your right mind see how anyone could regard it as a means to any legitimate state interest. In short, we want to give governments a wide berth for experimenting to achieve legitimate goals, we don’t want to second-guess the chosen means. But if the stated means make no sense at all, and this strongly suggests that the real purpose is to harm some hated group, courts will balk.
And this is precisely what happened in the one gay/lesbian issue Equal Protection case to reach the Supreme Court previously. In Romer, as in Perry, Colorado had amended its constitution to make a certain kind of possible statute favorable to homosexuals (anti-discrimination statutes) unconstitutional under the state constitution. The state claimed that it was a conceivable means, saving up your anti-discrimination resources, for a legitimate purpose, combatting other kinds of discrimination. The Supreme Court, essentially, said “bullshit.” The law served no purpose other than to harm gays and lesbians because they were gays and lesbians.
What that tells us is that the Supreme Court wants lower courts to treat classification by sexual orientation not as a suspect classification, but that one should look rather carefully at the alleged means and ends involved, since anti-gay animus is a very real part of our political scene, and government actions might very well be pretextual, born only of animus, and thus unconstitutional.
So much of the debate in Perry (remember Perry?) is not about what level of scrutiny to apply: we apply rational basis review. It is about whether we apply it with or without “teeth.” And this partly explains the strangeness of the discussion that went on in the trial. The plaintiffs kept saying that the law made no sense other than as an act of animus; the state kept saying that it didn’t have to make sense, that courts ought not to second-guess the means government employs to pursue its legitimate ends.
And in the end, which argument makes the most sense to you is going to be determined by how you understand what homosexuality is. If it is a pattern of sexual conduct, then regulating it is no different than having laws against adultery, and if a state wanted to claim that laws against adultery preserve families and are thus good for society, courts would have to use rational basis review without teeth and hold the law constitutional. If it is a kind of person that lots of people just hate for no good reason (e.g., the mentally challenged), then regulation that obviously does nothing but express hostility (e. g., denying a permit to a home for the mentally challenged for NIMBY reasons) will be subject to rational basis review with teeth, and be held unconstitutional.
So all we need to do is figure out what the appropriate attitude toward gays and lesbians is, and the case solves itself?
Actually, this question was settled in Romer: we use rational basis review with teeth. That is, the Supreme Court has already said that expressing hostility toward gays and lesbians is not a legitimate state interest, so there better not be a merely pretextual pursuit of that. Does that settle the question? No, for two reasons. First, we would have to determine if there are any legitimate state interests in play other than that, and how much sense it makes to think of blocking gay marriage as conducive to that. And this, it seems, is messy enough that you want some sort of factual record. Here California was on weak ground, because it wanted to rest its argument on deference to the legislative authority without review of means, as if we were in rational basis review without teeth when we’re not. But once you begin to review blocking gay marriage as a means of promoting procreation and flourishing families (legitimate interests all), it begins to look hopeless for the argument, since we don’t generally prevent infertile people from marrying, and there doesn’t appear to be much evidence that same-sex couples parenting is bad for kids, surely at least no more bad than, say, divorce is. If it begins to look like California is grasping at straws in its account of what it is trying to do, that suggests the real basis is animus, the desire to treat some people as less equal than everyone else.
But wait: there’s more. You see, marriage discrimination is a special kind of discrimination, for in the famous, poetically named Virginia v. Loving the Supreme Court held that bans on interracial marriages violate both Equal Protection and a Due Process fundamental right to marry. Since there, the two types of analysis converge on the same level of scrutiny, strict scrutiny (racial classification, fundamental right), a certain blurriness about how the overall analysis is supposed to go is not a problem. But what if we had a non-suspect classification mixed with a fundamental right issue?