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Guest Post: An Explanation of the Two Constitutional Issues in the Prop 8 Ruling

August 5, 2010

In yesterday’s post, I didn’t really touch on the two Constitutional issues that Judge Walker was addressing.  Here is what I think is a really clear explanation of the two issues–Due Process and Equal Protection–brought to you by Mike, who has written here before.

There are two Constitutional issues in this case, and each is subject to different standards of review.  Here is a brief explanation of how that works (it should be noted that both of these arguments are not needed to make the law unconstitutional, only one is, so the fact that Walker found they both are reasons for a constitutional violation will make it more difficult because the defense now has to argue both on appeal and overcome both on appeal to win):

1) Due Process

The due process argument is one made in both Loving v. Virginia and Lawrence v. Texas.  The legal question here is: Is there a fundamental right (one enshrined or inferred from the actual constitution) that is being violated by governmental action? In Loving the Supreme Court found that there was a fundamental right to Marry, and in Lawrence, the Supreme Court found that the fundamental right of privacy (established in Griswold v. Connecticut) extends to intimate relationships.  (For example, in Roe v. Wade, the Court extended the right of privacy from Griswold to include a woman’s right to choice, Lawrence was did the same for intimate relationships.)  Here, Walker said that Prop 8 violated the fundamental right to marry.

Now, once it was decided that a fundamental right had been violated, the state action must pass strict scrutiny if it is to be upheld as constitutional.  This test is very difficult to pass, and very rarely ever does.  To overcome strict scrutiny, the state has to prove that 1) the state has a compelling interest, 2) that the government action is narrowly tailored as to not infringe on the right as much as possible, and that 3) there are no other better alternatives.  (I’ll explain below but Walker says this law doesn’t even pass rational basis, so here, there is no way it would ever pass strict scrutiny)

2) Equal Protection

The equal protection argument is one that can be found in historically Brown v. Board, but also in Lawrence.  Here the legal question is:  Is there a class of people being discriminated against by a governmental action, and is this class protected? There are three groups which different classes can fall: Suspect Class, Quasi-Suspect Class, and Ordinary Class.


The Supreme Court has found that there are two main groups that fall into this class: race and national origin. Suspect classes are described as those which:

a)  The group has faced historical discrimination;
b)  The basis of the discrimination is on an immutable (unchangeable) characteristic;
c)  They are hard pressed to protect themselves politically; and
d)  The minority is discrete or insular

(As a side note: Just to make clear my perspective, I think that homosexuals are a suspect class because they satisfy each of those characteristics)

Once a class has been labeled suspect, then any action taken by the government must pass Strict Scrutiny (same as above).

Quasi-Suspect:  These classifications (mainly distinctions made based on sex/gender) are based on a class that is almost suspect but where the court has found governmental reasons acceptable for differentiating them because of the immutable characteristic (i.e. the Supreme Court has said that men and women are fundamentally different in their biological make up and therefore sometimes the governmental action does not need to pass strict scrutiny).  This group faces Intermediate Scrutiny.  To overcome intermediate scrutiny the government must show their action 1) furthers and important governmental interest that is 2) in a way that is substantially related.  If you compare that to strict, the government here only needs to further an “important interests” as opposed to a “compelling” one under strict.  At this level the court is unreliable and could go either way.

Ordinary: Ordinary classifications have typically been everyone else: political affiliation and sexual orientation have typically fallen here.  To overcome an ordinary class distinction the government only has to pass a rational basis review.  To succeed, the government only needs to show that it has a legitimate interest (the government has an interest in about everything) and that their action is rationally related to that legitimate interest.  Almost all governmental actions pass this test.

To reiterate:  To put the three levels of review, Strict, Intermediate and Rational basis, in the simplest language:

  • Strict = the government better have a damn good reason
  • Intermediate = the government better have a good reason
  • Rational Basis = the government should probably have a reason for doing what they are doing

THE CATCH:  Making this all the more difficult are two Supreme Court cases: Lawrence v. Texas and Romer v. Evans.  In both of these cases the majority opinion was written by Justice Kennedy (this is important later).  In Romer, the court struck down an anti-gay Colorado law but on rational basis (striking laws down on rational basis is very, very rare). Most notably in that case, and cited by Judge Walker, is that morality cannot be a “legitimate” state interest and therefore laws regulating morality will not survive rational basis.  Walker stated that he felt Prop 8 was a regulation on morality and therefore did not pass rational basis.

Lawrence is difficult because Justice Kennedy was deliberately vague.  Justice Kennedy hinted that homosexuals are an ordinary class, but then used a higher level of scrutiny (something more like intermediate scrutiny) to strike down the Texas sodomy law.  This departure from the ordinary way of looking and reviewing class specific law is now sometimes referred to as “Rational Basis with a Bite”  A lot of legal scholars now disagree which class homosexuals fall under according to Lawrence.  Justice Kennedy would likely say Ordinary if pushed, but his legal reasoning seems to indicate he is playing politics and really would place homosexuals in a Quasi-Suspect class.

And now how this all applies to Walker’s decision:

A lot of legal commentators are reading Walker’s opinion and finding a lot of similarities to what Justice Kennedy has written. It has been suggested that Walker was writing to Kennedy in his opinion.  As far as Due Process, Walker seems to say that a fundamental right has been violated here, thus would require strict scrutiny.  But when discussing Equal Protection, I have read both that Walker classified homosexuals as an Ordinary Class, and as a Suspect Class.  A lot of this debate stems from him saying, I believe they are suspect class, but then applying a rational basis review (ordinary).  This mixing is very similar to what Kennedy did before and I think is what is sparking some of the disagreement as to what Walker is saying.**  Regardless, Walker’s tedious handling of the case and his determinations of fact will make this more difficult to overturn.  All in all it is a big win for the gay community.  Even if (knock on wood) the Supreme Court eventually overturns Walker’s decision, historical opinions like this stick around, and are argued and debated and will continue to influence law for decades.

**My personal belief is that he would like to make a suspect class designation, but the precedent set by Lawrence (the vague classification of homosexuals) would leave his opinion vulnerable to reversal on appeal (because it contradicts existing common law).  He therefore applied to lowest form of review anyway and came out that Prop 8 was unconstitutional.

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