Torn on Prop 8 decision

Gay couple with marriage papersPlease 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.

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  1. Hmmm. When I read the opinion, I got the impression that Judge Walker used both the rational basis and the strict scrutiny test, and found that under both analyses, Prop 8 failed. That was why there was so much discussion about “fundamental rights”, with marriage being a prime fundamental right.

    Let’s see. From the opinion:

    As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. p. 117

    I thought that Walker was consciously trying to anticipate your objection, along with the objection of those on the Supreme Court, esp. Kennedy (Scalia, Thomas, Alito and Roberts being lost causes – which doesn’t say much for them), by making it clear that there was no test that could legitimize it – rational or strict or anything in between. You said:

    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

    As far as the rational basis test, he pointed to all the evidence of the Plaintiffs that showed that there really is no reason why, for instance, children are better off raised by heterosexuals. He cited studies, and the experts who testified, that indicated the contrary. For instance:

    72. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes. Tr 1040:22-1042:10 (Lamb).
    73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. Tr 1187:13-1189:6 (Lamb).

    The proponents offered no evidence whatsoever, believing that their argument was self evident. On appeal, if they want to try to convince the court that what you suggest is potentially rational, all the Plaintiffs have to do is point to the Finding of Fact (which must be given deference by the appellate courts) that their reason is not supportable by evidence.

    All in all, I found it to be an opinion written specifically with an appeal to the S. Ct in mind, leaving little wiggle room. That doesn’t means that the court won’t wiggle, but they know that legal scholars will hold their feet to the fire, and they damned well better not pull a Bush v. Gore.

  2. Aristarchus

     /  August 11, 2010 at 9:23 pm

    I think the complication here is that strict scrutiny is used in two different contexts. One (which I think is the original one) is in equal protection cases. The other that I know of is in “fundamental rights” analysis (privacy, marriage, and some other stuff). The reference to a due process claim that you quote might be part of fundamental rights analysis, or might be another place where strict scrutiny is used.

    I think you (Spanish Inquisitor) are right that the decision was very well written for making it tough for the Supreme Court to overrule, since making gays a suspect class would be new and potentially controversial law where applying rational basis test isn’t. That said, I would also very much like to see gays ruled a suspect class, because marriage isn’t the only issue where this will come up, and it just seems like the obviously correct and consistent legal framework.

    For what it’s worth, the CA supreme court did apply strict scrutiny when they originally ruled for marriage (unlike the MA supreme court, which used rational basis). It just seems to make more sense that way. You’re right that the finding of fact went against the defendants, but normally in rational basis review, they just have to argue that it’s plausible, not even win the finding of fact. There’s a long history of “rational basis” meaning something stronger when it comes to gay rights. It doesn’t really make sense.

    All that said, I’d much rather have a slightly weird logic that will convince the Supreme Court than an actually good logic that won’t.

  3. Spanish Inquisitor — you got me, I didn’t make it through all 138 pages. I read a big part of it, and I read several news and opinion articles about the decision (including this glowing one by the normally thorough Dahlia Lithwick) which all quoted the parts where Walker discusses the lack of rational basis and all ignored mention of strict scrutiny. My mistake for not checking more carefully! Thanks for the clarification. If what you’re saying is right (not that I don’t trust you, but I’m having trouble getting it to fully load right now and can’t read it for myself) it sounds like Walker applied the rational basis test because it was about homosexuality and strict scrutiny because it was about marriage. Maybe he was just covering all bases … but if something fails the rational basis test, it obviously fails strict scrutiny, so it’s not necessary. And if the part about homosexuality is really just the rational basis test, then what happens in a case about something like DADT, or public schools refusing to hire gay teachers? We still need strict scrutiny on the sexual orientation part, to ensure real equal protection.

    Aristarchus — reading your comment reminds me to be anxious about the term “suspect class” as well. I’m sure there are many conservative religious politicians who would (at first) agree that homosexuality is a suspect classification. They’ve been suspicious of it for years! Sigh. Legal jargon. Anyway, thanks for your comment.

  4. Hmmm, again. It looking over the opinion some more I find this:

    As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.[emphasis added]

    then this

    The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.[emphasis added]


    Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

    So color me confused. I feel like I’m back in Con Law class in Law school.

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