By all accounts, the Supreme Court will be getting ready to hand down a big win for marriage equality after hearing arguments from both sides today. With the preponderance of lower court rulings in favor of marriage equality and no reason to think that the five judges who struck down DOMA two years ago have changed their mind, it would be a monumental upset if the court did not move to make marriage a national right.
However, how they do so will make a big difference legally. The final ruling may look sweeping, but it could be more limiting than it appears at first glance. That’s why Mary Bonauto and her fellow legal advocates for equality will not just be pressing the court for a majority but a sweeping decision as well.
It all depends on whether the justices think that being LGBT is a characteristic that deserves the government’s highest level of interest, or whether it’s just important enough for the government to step in.
Legally, that’s a huge difference. If being gay or lesbian is a characteristic like race, then the courts have to apply something called “strict scrutiny.” In plain English, that means the other side had damn well better have a brilliant case because it’s going to lose in any case.
How about we take this to the next level?
Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.
The courts haven’t gone there yet. In so far that lower courts have done so at all, they’ve used a lower standard called “heightened scrutiny.” That means the government has a compelling interest in the outcome, but under some circumstances, discrimination may be acceptable.
Not to diminish any of Anthony Kennedy’s contributions to advancing LGBT rights, but he has explicitly refused to apply the strict scrutiny standard. In fact, in Romer v. Evans, Kennedy refused to tell lower courts how they should approach LGBT discrimination cases. They could take each case on its own or apply another standard. Kennedy wasn’t about to tell them.
And it seems unlikely that he’ll do so now. Strict scrutiny may be the bridge-too-far for Kennedy to cross. In fact, any classification at all seems too far.
Which means that religious liberty cases can’t be tossed out of court for being laughably unconstitutional. If Bobby Jindal wants to defend his odious religious liberty law (assuming it passes) in court, he will probably get a hearing. He can even appeal all the way to the Supreme Court. And the Court will have to consider if there are unsettled constitutional questions to answer.
Because there are. If we aren’t protected as a class, we may get all the right decisions, but without the legal reasoning that can be broadly applied to other cases. Instead, it’s a case-by-case slog. That’s not to say that we’re any less likely to prevail, but it does mean we haven’t heard the last challenge to marriage equality. Nor has the Supreme Court.
MacAdvisor
Yikes, about half right. Strict scrutiny is a form of heightened scrutiny. Heightened scrutiny requires the government to have a *compelling* interest, the law must be *narrowly tailored* to achieve that interest, and the law must achieve the interest through the *least restrictive means* available. I have attempted to highlight the magic words of the standard and they come from United States v. Carolene Products Company, 304 U.S. 144 (1938). So far, the Supreme Court has applied strict scrutiny to race, national origin, and alienage classifications. Slightly lower is another form of heightened scrutiny is “intermediate” scrutiny. It requires the government to have an *important* government interest and the law addresses the interest in a way that is *substantially related* to that interest. It applies to gender-based classification and illegitimacy. Courts also apply strict scrutiny to cases involving a liberty interest, such as free speech (marriage may well be such a liberty interest).
While this differences matter when taking a law school Con Law exam or a state bar exam, they effectively meaningless. If a court determines either form of heightened scrutiny applies, almost universally the government loses. Should the Supremes hold sexual orientation classification systems be held to either level, the system is almost certainly going to be unconstitutional. The important thing with either is the government, not the plaintiff, must show the law meets the standard.
The third standard of scrutiny is rational basis. Rational basis requires the government to have some rational, statable reason. Moreover, the burden falls to the plaintiff to prove the reason isn’t rational. There is a slightly higher version of this called “rational basis with bite.” It means the court will approve the government’s plan if there really is a rational basis, but not a plan based just on “animus,” that is hatred. For the most part, cases on sexual orientation have been looked at with rational basis with bite, but United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307) seems to have changed that. By and large, the government wins rational basis suits.
The article is right about the classification possibilities. The Carolene Products has what is called the famous Footnote 4. It suggests a higher level of judicial scrutiny for legislation that met certain conditions:
• Laws that, on their face, violate a provision of the Constitution (facial challenge).
• Attempts to distort or rig the political process.
• Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.
That last is the argument Roberts is stuck on. His misunderstanding comes from the power of the minority BY ITSELF in the political process and not the power the minority can gather when it has persuaded the MAJORITY to its cause. Thus, if gay people had sufficient political power to vote in same-sex marriage without our straight allies, we likely would not qualify for minority status. However, if we need the majority to join with us to accomplish anything, then we are a minority needing court protection.
Desert Boy
If the right to marriage equality is denied to us by the Supreme Court justices then, it is my opinion, we will be designated and codified ‘second class citizens’, and we should be exempt from the burden of paying federal income tax.
Kangol
From today’s response by Associate Justice Anthony Kennedy, SCOTUS support for federalizing same-sex marriage is not looking as likely as some media commentators thought it would. I hope Kennedy supports the four liberal judges, but with him you can never be sure.
Giancarlo85
@Kangol: Kennedy isn’t likely going to backtrack on this matter. The four liberal justices may not even need Kennedy.
Either way, I don’t think he will rule against same sex marriage.
Tom Emerick
No
Realitycheck
@Giancarlo85:
I agree, in the past Kennedy has sided with gay rights,
and lets keep in mind the Judges must follow rules and
regulations, as such it is not always about liberal vs
conservative, we have seen that with liberal Judge Ginsburg
delivering a blow to pro abortion advocate.
I expect a 7 to 9 decision in favor of gay marriages.
GayEGO
@Realitycheck: 7 to 9 sounds about right to me as well because Scab-lia and Thom-ass will refuse to use their brain to separate church and state. :>)
Giancarlo85
@Realitycheck: You mean 7-2. is unlikely because Thomas and Scalia basically agree with each other.
Robert Becker
With the recent flurry of “religious protection acts” in the news, one could hope that the Supreme Court will see how difficult it will be for the LGBT community to enjoy equal treatment.
Kevin Karns
NO
1EqualityUSA
MacAdvisor, Thanks for the comment above. Food for thought. I was walking doggies, cleaning out the basement, and doing menial labor in the house. It’s nice to know others are out there thinking. I used to think. Now I clean.
jwtraveler
@Desert Boy: We should also be exempt from military service, but we know how that went.
Elloreigh
“Will The Supreme Court Make Us A Protected Class?”
Nope. They’ll apply the lowest level of scrutiny – rational basis – and rule 6-3 against us with Breyer joining conservatives Alito, Kennedy, Roberts, Scalia, and Thomas.
Yes, I’m serious. And hoping that I’m completely wrong.
Giancarlo85
@Elloreigh: You don’t really know what’s going on. Kennedy and Breyer are not going to side with Scalia and Thomas. And Alito didn’t look entirely convinced by conservatives either.
jwtraveler
The concept of “protected class” is antithetical to the principle of equality. We should all be a protected class so that no one treats anyone unfairly.
charlieeod74
@Elloreigh: I have this sinking feeling that you are right.
Elloreigh
@Giancarlo85: I’ve read the transcripts and listened to the audio. Have you?
Breyer questioned whether or not it’s the Court’s place to decide this issue, and he did so with surprising force.
Regardless of how the justices feel about the equality question, if enough of them think it’s not an issue the Court should decide, and that things are moving too fast, it would be enough to sink this ship.
It might only be a dozen years since Lawrence, but it took 42 to get from Baker v. Nelson to Obergefell. I don’t have another 42 years to wait. Like I said in my initial post, I hope I’m completely wrong.
I don’t think people are prepared for me to be right, either. If we lose this case, it could be the beginning of seeing decades worth of hard work and gains go right down the toilet.
Public opinion polls don’t mean squat in a nation that is turning into an oligarchy – especially if that wealth ends up being concentrated in the hands of people of religious faith who oppose us. Think about it – the Roman Catholic Church and its affiliates put up over half the funding for my state’s marriage amendment, and they were joined by wealthy members of the Dutch Reformed Church.
I’m not anti-religion, but this issue is a perfect example of why religion and state need to remain separate. Instead, I live in a state whose marriage amendment was co-authored by a member of the AFA, one that has no anti-discrimination protections on the basis of orientation, and one that is now considering a RFRA.
Meanwhile, the ‘coasters’ already ‘got theirs’, and I’m not persuaded that they actually give a rip about those of us left in the flyover states who are decades behind them in terms of acknowledgment and protection of our rights.
So believe me – I REALLY hope I’m wrong about the outcome of this case. But I don’t think I am. Time will tell, and the story it tells us could end up being the stuff of nightmares.