Perry v Schwarznegger: Some quick comments

August 9, 2010

Due to my fascination with this subject, I took the time to read the whole 130 plus pages of the decision in this case and found it very interesting and definitely worth some time to discuss.

If I can bore the reader with a quick review of the underlying law, please bear with me.  In interpreting the “equal protection” clause, it is well settled that laws which limit the rights of a class of people are only valid if there is a rational basis for the classification, i.e. the law furthers a legitimate State interest.  Further if the classification is “suspect” (i.e. if it relates to a group that has suffered from discrimination), the basis for the law must be more than merely rational but is subject to enhanced scrutiny to determine if the State has a “compelling interest” in the limitation on that class’s rights.

In reviewing the ban on gay marriage, the court first analyzed the factual presentations of both the plaintiffs, two couples who sued to enjoin the ban’s enforcement, and the parties who intervened in the litigation when the State (through both  its Attorney General, a democrat, and its Governor, a Republican) refused to defend the law suit.  In that review, the court found, in acting as the trier of fact (analogous to a jury in a regular trial) that the interveners had put on zero credible evidence of any rational basis for the ban other than their perception that redefining marriage to include same sex couples was morally improper.  The opinion went on to conclude that the State has no constitutional right to justify a limitation of a person’s right based solely moral views of the majority. 

As an aside, there are many examples of valid laws where immoral conduct is barred because of its ancillary impacts.  For example, all states (except Nevada to a limited degree) criminalize prostitution, presumably in part due to a perception of its immorality.  But prostitution has the potential for identifiable negative ancillary impacts on both the prostitute and his/her client and that the gives the State a rational basis for concern.  Those impacts  include but are not limited to the spread of disease, the impact on marriages of clients, etc.  Additionally, neither prostitutes nor their clients should be considered classifications who have a history of being discriminated against.  Hence those laws are uniformly upheld notwithstanding that morality plays a role in the basis for the prohibition because there is no suspect class impacted and because there is a rational basis for the restriction.

But in the case of same sex marriage, all the credible evidence at trial, including the testimony of a witness who is against same sex marriage, clearly demonstrated that there is no negative impact from allowing gays to marry other than that its opponents notions of morality are offended.   The evidence of the plaintiffs’ experts addressed the impact on children of same sex couples, divorce rates etc. and uniformly, they opined that there is no identifiable difference between outcomes in opposite sex couples and same sex couples.  And even if there were some differences, since the state permits “registered civil unions” with the rights of married couples, the State was essentially approving of any such differences by sanctioning civil unions. 

The court went on to note the history of substantial discrimination against homosexuals and lesbians, and concluded that, as a matter of law, sexual orientation is a suspect classification requiring enhanced scrutiny.  After concluding that there was, as a conclusion of fact, no rational basis for banning same sex marriages, it was a small analytical step to conclude that there was no compelling interest for the State in that ban.  Result:  the ban is unconstitutional

But enough of the technical law and content of the decision and more about context.  In two recent U.S. Supreme Court cases  with decisions authored by Justice Kennedy, the Court has invalidated both the anti sodomy law of Texas because it discriminates against homosexuals without proper justification and a Colorado Constitutional Amendment banning laws protecting the rights of gays and lesbians for similar reasons.   Anyone who watches the Court knows that Justice Kennedy is the “swing vote” between a staunchly conservative minority including Justices, Scalia, Thomas, Roberts and Alito and the liberal wing including Justices Ginzberg, Breyer, Sotomayor and (presumably) Kagan.  Assuming those two camps remain true to expectations, Kennedy will likely be the determining factor in an expected appeal of Perry to that Court.  It is interesting to note two things:  one is that Kennedy was not only the swing vote in the two important recent decisions and two is that he was the author of both majority opinions.  It is also worth noting that there were harsh, almost vitriolic, dissenting opinions in both cases from Justice Scalia.  Judge Walker was clearly aware of the history in those two cases and appears to have been very careful to couch his opinion in terms which spoke directly to Justice Kennedy. 

Given the likelihood that the case will eventually be appealed to the Supreme Court, there are two scenarios to explore:  one is whether the Court will hear the case and the other is on what basis it will be decided if it is heard.  On the first scenario, there are two possible reasons why the case might not be heard. 

The first reason would be if the interveners chose not to petition the Court.  While it might seem like an automatic step, there are actually valid reasons for a tactical retreat assuming the 9th Circuit Court upholds the trial court decision.  Firstly, given the current composition of the Court and the recent history, one should be pessimistic regarding the possibility that Justice Kennedy will reverse his apparent position on discrimination against gays and lesbians.  There may be a better chance for the opponents of same sex marriage to await a new president and hopefully (from their perspective) the retirement of Justice Kennedy resulting in a “friendlier” replacement. 

There second reason for not seeking a hearing is the factual conclusions reached by the Court based on the specifics of the trial which were so unfavorable to the opponents of same sex marriage.  Remember, in the eyes of Judge Walker, the interveners did a poor job of justifying the ban on same sex marriage, i.e. demonstrating that California had a rational basis for the ban.  If this issue were to go to trial again in a different state with a similar ban, the opponents of same sex marriage would have been schooled on how to better frame their perspective and would be better able to structure the factual presentation to create the possibility of different findings of fact.  Essentially, the opponents of same sex marriage can have a “second bite of the apple”.

The second reason for the matter not being heard by the Supreme Court would be if it declined to hear the case.  Litigants do not have a right to be heard by the Supreme Court.  Rather, the appealing litigant petitions the Court and, if 4 Justices think the case should be heard, the Court grants a hearing.  At this point it would be pure speculation to guess which Justices might wish this issue to be heard on the specifics of this case.  Those who are generically opposed to rights based on sexual orientation might wish to defer hearing the issue with the Court’s current composition, while those who might favor the trial court’s decision might have concerns about Justice Kennedy taking this next step and also wish to defer until there Court’s composition has changed, allowing a 9th Circuit decision to act as the law.

As to a likely outcome, it will likely turn on Judge Walkers opinion that morality, in the absence of other criteria, is not a proper constitutional basis for laws limiting the rights of a class of people.  There appears to me to be a strong sense on the right, as voiced by Justice Scalia in Romer v. Colorado, that states have a legitimate interest in preserving the “mores” of its citizens.  While this has, to date, been a minority view, it really places the real issue four square.  Should we, as a nation, allow the majority to impose its moral views on any particular minority?  One can look to cases overturning laws against interracial marriages, race bans in zoning, etc., and see that we, as a Nation, have a long history of attempting to impose our prejudices on minorities based on the sensibilities of the majority.   Those practices have, almost always, been struck down.   And if the majority can impose its view of morality as a basis for limiting rights, what other rights are at risk?  Can states bar gays and lesbians from adopting?  What about bisexuals? 

This piece is already too long so I’ll end here and entertain questions in comments form.  Eventually I’ll try to do a similar entry on the Massachusetts federal court case invalidating the Defense of Marriage Act.

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