January 23, 2010
by Brian Leubitz
I mentioned very briefly the subject of “scrutiny” on Friday, but now I’m going to do a bit of explaining on the subject. So, I’ll crawl back into my law school self, and try to conjure up all my old memories of constitutional law class. I’m hoping that my professor won’t get mad at me when I mess one of these these up.
Anyway, when dealing with both equal protection and due process claims, both of which the plaintiffs are bringing in this case, there are three general levels of scrutiny that are determined by two factors. The tests vary slightly between due process and equal protection, but I’m going to conflate them somewhat for simplicity.
There are three levels of scrutiny:
STRICT SCRUTINY – The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.
INTERMEDIATE SCRUTINY – The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.
RATIONAL BASIS SCRUTINY – The government need only show that the challenged classification is rationally related to serving a legitimate state interest.
Now, the two factors to consider in determining the level of scrutiny are whether the class is a suspect or quasi-suspect class and whether the rights being abridged are fundamental. You can find a full list of rights that are now considered fundamental on Wikipedia, but the notable one for our purposes was Loving v. Virginia‘s announcement that the right to marry a person of one’s own choosing was fundamental. Of course, as of right now, that only applies to marrying a person of the opposite gender.
There are a few classes that have already been classified as suspect classes. Race always gets the highest level of scrutiny, strict scrutiny, and gender typically, but not always, gets intermediate scrutiny.
Under California law as defined by the In Re Marriage Cases decision of 2008, the LGBT community is a suspect class requiring strict scrutiny. However, gays and lesbians have never been found as a suspect class deserving strict scrutiny under federal law. In fact, Romer v Evans, Justice Kennedy, while not specifically saying that gays were not a suspect class, found that the Colorado law banning anti-discrimination policies for the LGBT community didn’t meet the lowest test. In other words, in Romer, the court found that there was no rational basis for the state of Colorado to ban the gay community from lobbying for anti-discrimination laws. Justice Kennedy’s Lawrence v. Texas decision to overturn Texas’ sodomy law also does not classify the LGBT community as a suspect class.
Other courts have begun to follow California’s lead in classifying gays and lesbians as a suspect class. In Varnum v. Brien, the Iowa supreme court applied intermediate scrutiny under the Iowa Constitution to allow same-sex marriage in that state. Despite the fact that the LGBT community under California law, state law decisions are merely persuasive authority on federal courts, they are not binding and can be essentially ignored.
So, that is all by way of background. Now, if the court were to apply the level of scrutiny from Romer v Evans, rational basis, the plaintiffs have a steep hill to climb. The plaintiffs would need to show was that there was no non-discriminatory reason for the law. That being said, given the testimony so far, they have gone a long way towards doing that. I liken it to playing a game of soccer on a tilted pitch, and the Prop 8 team gets to play downhill.
All that being said, the California decision to apply strict scrutiny surprised many legal scholars. And while the federal Supreme Court is less friendly than our version in California, it is possible that there is a fifth vote for increasing the level of scrutiny for the LGBT community. This uphill fights is precisely why it is so important that our trial team play everything to perfection.
So, in order to win we must either prove that Prop 8 didn’t meet the rational basis test, a difficult, but not impossible, task, or we must prove that the LGBT community is a suspect class. Proving either element is challenging to say the least, but Olson, Boies, et al, are making steady progress towards that goal.
We are fighting an uphill battle, but the last two weeks has really made me believe that it’s a battle worth fighting.