Scrutinizing scrutiny: Same-sex rights on trial

This post is the second of several providing background information about the LDS church’s involvement in the Prop 8 campaign in California. The series will provide pertinent court case and appellate background information to readers interested in March’s Supreme Court hearing. First post in series is here. More detailed timelines showing LDS involvement in same-sex marriage politics may be found here.

Between June 16 and November 4, 2008, same-sex marriages were legal in California. On that election day, November 4, 2008, 52% of the voters in California amended the state’s constitution, eliminating the right of same-sex couples to marry. The LDS church was the Goliath in a coalition of conservative churches and other organizations which led the fight to “preserve traditional marriage.”

As the election dust settled, two top-notch attorneys, conservative Ted Olsen and liberal David Boies stepped up to challenge the legality of California’s newly amended constitution. On behalf of two couples who were denied the right to marry, these attorneys compiled evidence, experts and case law supporting the idea that the revisions made to California’s constitution – revisions defining legal marriages as between a man and a woman – violate the United States Constitution. Specifically, they argued that their clients’ due process and equal protection rights were being violated.

The due process clause of the 14th Amendment to the Constitution requires that states must respect all of the legal rights that are owed to a person. In other words, citizens are protected from government intrusions into life, liberty and property, and laws must be reasonable, not arbitrary or capricious.

The equal protection clause of that same amendment says, “no State shall … deny to any person within its jurisdiction the equal protection of the laws.” In other words, all state laws must apply equally to everyone.

Olsen and Boies argued in their opening brief to the U.S. District Court that the state is “stigmatizing” same-sex couples by forcing them into separate, different and unequal contracts of domestic partnership rather than allowing them full legal marriage rights. They also argued that same-sex couples are being discriminated against because of their sexual orientation, because of their sex, and because they are part of a politically unpopular group.

The plaintiffs have claimed discrimination, but how do the courts measure it and apply standards of equal protection? And why does it matter?

Courts use a scale of scrutiny which is generally defined by case law. Where a plaintiff’s case lies on the scrutiny scale determines how easy or hard it is to prove a law is discriminatory and thus unconstitutional. Scrutiny is how closely the courts will examine a law when they decide whether or not it is discriminatory.

The lowest level of scrutiny, or examination, is called Rational Basis. If there’s a rational reason for a law, it is not arbitrary. For instance, there is a rational reason for requiring medical doctors to be licensed – the reason being that the government has an interest in protecting the public health. For plaintiffs claiming discrimination, it is not easy to prove laws have been enacted irrationally; most laws are “based upon some reasonable ground—some difference which bears a just and proper relation to the attempted classification—and [are] not a mere arbitrary selection.” For courts, laws don’t have to be well-thought-out to pass the rationality test; it is possible for a stupid law to be a legally rational one.

If the plaintiffs are not members of a special kind of minority group, called a suspect class, they will have to prove a law is not rationally based if they want to prove they are being illegally discriminated against and that their constitutional rights to due process and equal protection are being denied. Most laws are rationally based, so it is easier to prove discrimination if you are part of one of those suspect classes.

The federal government recognizes four minority suspect classes that automatically fall under strict scrutiny protection. Laws which single out people or groups based on race, religion, alienage or national origin are likely to be deemed unconstitutional unless the laws are compelling, narrowly tailored and temporary ones, often such as those which deal with national security, defense or affirmative action. Additionally, laws which affect citizens’ rights to vote, travel or maintain privacy also regularly fall under strict scrutiny protection.

Sexual orientation is not currently a suspect class in the eyes of the federal courts, and it is not clear that the sex of one’s intended spouse is a matter of privacy (although most sex-related issues fall under privacy protections). (For those who noticed, gender discrimination laws are not subject to strict scrutiny, but they do deserve “heightened scrutiny” analysis – more strict than a rational basis, but not as far-reaching as strict scrutiny.)

Olsen and Boies’ arguments in the Prop 8 cases reflect the idea that sexual orientation should be protected by a higher standard than rationality – that same-sex couples are indeed part of a suspect class. Court criteria for finding groups that qualify as suspect classes include: (1) the group has been historically discriminated against and/or has been subject to prejudice, hostility, and/or stigma, perhaps due to stereotypes; (2) they have an immutable and/or highly visible trait; (3) they are powerless to protect themselves using political processes; and (4) the group’s distinguishing characteristic does not inhibit it from contributing meaningfully to society.

In presenting evidence to support their contention that same-sex couples belong in a “suspect class,” Olsen and Boies showed the court the types of arguments and rhetoric used in several campaigns, but focused mainly on Proposition 8. Because the LDS Church was intimately involved in the development and dissemination of campaign literature, materials and volunteers for Prop 8, the Church’s tactics and church members’ actions in the election became relevant to the court’s record.

Eventually, the church took the opportunity to speak for itself, filing “friend of the court” amicus curiae briefs during the appeals process. The 9th Circuit Appeals amicus brief is here in PDF form and the U.S. Supreme Court amicus brief is here.

The course of this particular case through our federal justice system has been long and rambling and full of enough technicalities that a law professor could probably design a year-long course based on just this one case and the issues it raised. There are a number of places online which provide details, transcripts, documents and analyses of the evidence, the arguments and the intricacies of the case.

For information directly from the courts, see here for the original U.S. District Court filings and evidence; see here for the 9th Circuit Court of Appeals; see here for California Supreme Court (the 9th Circuit asked the California Supreme Court to weigh in on some technicalities we’ll discuss in a future post)

For information compiled by the plaintiffs, including trial transcripts see here

To watch a play with a script taken directly from the trial transcripts, see here

For information compiled by the defendant-intervenors (the Prop 8 supporters) for the U.S. Supreme Court case see here

For information and analysis by the SCOTUSblog, as well as links to U.S. Supreme Court filings, see here

Should sexual orientation be a protected class under the federal constitution (along with race, religion, alienage and national origin)?  Should it require at least the same amount of examination that gender requires? It seems part of the country is moving in that direction, but there is enough ambiguity that a firm statement from the highest court in the land would be helpful:

There are 18 states plus the District of Columbia which include sexual orientation as a protected class with regards to housing, and many of those also protect employment rights as well.  Congress has tried to pass the Employment Non-Discrimination Act almost ten times in recent decades, but has not yet been able to include language that “sexual orientation and gender” should be protected under Title VII. The FBI will begin collecting hate crime statistics based on sexual orientation this year (these statistics have been reported in previous years, but only on a voluntary basis).

This lack of continuity between states may be part of the reason the Supreme Court agreed to hear both the Prop 8 case and a Defense of Marriage Act case during the current session.  But before the court can weigh in on the merits of the law, it first has to find that the appellants, the people who wrote the Prop 8 initiative language, actually have the right to bring an appeal before the court in the first place.  So we’ll discuss the issue of Standing very soon.