Please don’t get me wrong. I was thrilled to hear that Judge Vaughn Walker struck down California’s Proposition 8 as unconstitutional. I join many other atheists in rejoicing that religious bigotry was declared unjust, and even though this decision is not the final word, in being hopeful that the same-sex marriage issue will reach the correct resolution eventually. I think it was the right decision. But I wish that it had been made for a different reason.
First, let me attempt to briefly explain a bit of the constitutional law background. (Disclaimer: I have no formal legal training. But I have read a lot about it, and I do consider myself reasonably well-informed on this. Make of that what you will.)
Cases about equal protection, as defined by the 14th amendment, have been decided based on a tiered set of standards. The lower tier standard is the “rational basis test,” in which judges ask if there exists some rational basis to suppose that the legislation in question furthers a “legitimate” government interest. It doesn’t have to be the best idea, or even obviously a good one, after all has been said and done — but rather just something that a rational person could decide to do. And the original intended purpose of the legislation doesn’t have to be to further that particular government interest. As you might imagine, virtually everything tends to pass this test.
The upper tier standard is the “strict scrutiny test,” in which judges must decide whether there is a “compelling state interest” in making this distinction between people. Notice that the court here judges whether the government interest being served is a “compelling” one, meaning whether it is actually at the end of the day a truly good idea. The legislation must be “narrowly tailored” to achieve that interest, as well as the “least restrictive means” for doing so. As you have probably deduced, the majority of things this test is applied to end up failing it.
There is a gray area in between these standards which has sometimes been separated into its own tier, “intermediate scrutiny.” It’s basically something halfway between looking for a rational basis and applying strict scrutiny, though how that is interpreted is not as clearly defined as the others. The policy in question must serve an “important” state interest and there must be a “substantial relationship” between the policy and the desired outcome.
Which tier a particular case falls into depends on the trait being used as a distinguishing feature. The actual process for making that determination is rather nuanced and not strictly codified, but the fundamental gist of it is: how likely is it that a law that treats people differently based on this trait is unfairly discriminatory? If there is a long history of discriminatory social attitudes and laws about this trait, if people with this trait have been politically disenfranchised and treated as inferior members of society, then laws about that trait are considered with strict scrutiny. Think: race, or religious groups. It’s hard to imagine a law about people with particular skin pigmentation or people with particular religious ideas that wouldn’t be unfair and discriminatory, so you’re really going to have to make a compelling case if you want your law to be upheld. On the other hand, the less that people with the relevant trait have been traditionally discriminated against in society, the less strictly we scrutinize laws about them. We value the democratic process and want to defer to legislatures as much as we can.
Judge Walker used the rational basis test to strike down Proposition 8. He’s not the first to apply the rational basis test to laws concerning sexual orientation — it was also done in Romer v. Evans and Lawrence v. Texas. Precedent is important in constitutional law, but at some point bad precedent should be corrected. I think that a stricter standard of scrutiny should have been applied.
The first reason I would have appreciated a standard tougher than the rational basis test is a pretty petty one: proponents of Proposition 8 miss the point when you start right off by telling them that they are “irrational.” I mean, that is kind of what’s being communicated, I suppose, although the legal language doesn’t mean quite the same thing as the colloquial usage. Still, it made me cringe to see Christian leaders such as Albert Mohler making statements like:
In one brazen act of judicial energy, California’s voters were told that they had no right to define marriage, and thousands of years of human wisdom were discarded as irrational. … On page after page, Judge Walker arbitrarily accepted the claims put forth by proponents of same-sex marriage as rational, and declares the evidence and arguments put forth by the defenders of Proposition 8 as lacking in any rational basis.
I mean, Mohler’s right insofar as failing the rational basis test means that the judge couldn’t come up with any halfway plausible ideas that people might have been thinking when they justified Proposition 8 to themselves. That’s got to be a harsh blow. But now it turns into “us vs. them.” Mohler says that Walker made his decision “arbitrarily.” The Proposition 8 supporters are saying, “Hey, you called us stupid, and we’re not going to stand for that!” What a mess. This shouldn’t devolve into some sort of playground fight, but I get the feeling it’s going to (…to whatever extent it hasn’t already). If strict scrutiny had been applied, the decision would have sounded less like, “You guys are just totally nuts,” and more like, “We see why you thought you had a good idea there, but in cases like this we have to be very careful not to deprive people of essential rights, and you didn’t quite make it over the bar.” Same outcome, but more diplomatic.
Of course, political considerations like this aren’t how equal protection precedent ought to be set. It bothers me personally, but that’s not really the point.
The real point is — with constitutional law, precedent matters. It matters a lot. The basis we use for determining whether a law is constitutional is going to get used again in the future! Okay, NFQ, but so what? Well, I could easily imagine “heterosexual marriage is better for children” passing the rational basis test as it’s typically used. Providing a good environment for children to grow up in is conceivably a legitimate government interest. I can see why a rational person might believe that having role models of both genders would be preferable to having role models of only one gender. Remember, the rational basis doesn’t have to be true, it just has to be not obviously false, and it doesn’t even have to be the real basis for the law.
When the courts apply the rational basis test to laws about sexual orientation, they’re not really applying the rational basis test. They’re looking at compelling state interests, not legitimate state interests. They’re looking for a proven relationship between the policy and the intended outcome, not just a plausible one. They might be thinking intermediate scrutiny or strict scrutiny, but they’re saying, “This law fails the rational basis test.” So the rational basis test is the precedent.
That’s bad for future sexual orientation cases, where laws might pass the rational basis test despite violating equal protection. But it’s important to remember that it’s also bad for other cases where the rational basis test should be used. What does “rational basis” even mean anymore? How strict is it, really? If the rational basis test gets too restrictive, then we’re not deferring to the democratic process when we really ought to be.
The fact is, there is a history of discrimination against people based on their sexual orientation. People who aren’t heterosexual are treated as deviants, as less than human, and anyone who hasn’t been living under a rock would be able to tell you that. Non-heterosexuals are also a minority, which means that this discrimination results in real political disenfranchisement. And a person’s sexual orientation doesn’t harm anyone else, or even really impact anyone else. There is no reason for the government to treat someone differently because of their sexual orientation.
Sexual orientation laws deserve stricter scrutiny. While I’m glad that Proposition 8 was struck down, I wish it had been done in a way that was legally and philosophically consistent with equal protection jurisprudence.