Don Davis

Prop 8 Preview: The 'Basis' Is The Thing

Filed By Don Davis | August 04, 2010 3:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: before the ruling, Constitutional Law, DOMA, Prop 8, Prop. 8, Rational Basis, Strict Scrutiny

As you look at today's Prop 8 ruling, I want you to think back a few weeks to the Massachusetts Defense of Marriage Act (DOMA) rulings for a bit of legal logic that will make a huge difference as this case moves through any appeals process. What I want you to think about are two moderately obscure concepts: "strict scrutiny" and "rational basis". The difference between the two will tell us how hard Prop 8 will be to defend, and we'll quickly walk through what you need to know, right here, right now.
We have a long discussion available, here and here, that explains exactly what happened in Massachusetts a few weeks ago, but the short version is something like this: a series of Plaintiffs, including private persons and the State of Massachusetts, sued the Federal Government, alleging that DOMA violates the Constitution. Judge Joseph Tauro, of the District of Massachusetts, ruled in two rulings, released on the same day, that DOMA does indeed fail Constitutional muster, but he added a rather unusual twist to the ruling, and to explain that twist, we now need to talk about the concepts of "strict scrutiny" and "rational basis". It works like this: according to the Supreme Court, some rights are more "fundamental" than others. If a government seeks to intrude upon one of these fundamental rights, they need a very good that's so good, in fact, that it can survive the "strict scrutiny" of an examining Court. Marriage for the purpose of procreation has already been established as a fundamental right by the Supreme Court in the 1967 ruling Loving v Virginia; nobody's ever really specifically addressed the question of whether those who do not intend to have children have that same fundamental right to marriage. Other rights are considered less fundamental; governments can intrude upon those "liberty interests" if the intrusion:
" "narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]... ...As such, a law must fail rational basis review where the "purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects..."
That intrusion is far easier to justify under this "rational basis" standard than it is under strict scrutiny. So here's the twist: in the Massachusetts cases, Plaintiffs argued that DOMA failed the strict scrutiny test--and if marriage without procreation is considered to be a fundamental right, then the Plaintiffs should prevail, and DOMA should be ruled unconstitutional. But the Judge ignored that argument. Instead, he analyzed the case from a rational basis point of view--and even under that far less restrictive standard, he ruled that there was no rational basis for the existence of DOMA. In fact, during rational basis review the Defendant's attorneys, or even the Judge, can invent their own "rational bases" for the law, during the trial, and apply those to the argument, and even with all that help nobody could figure out any reason for DOMA to exist--except for the possibility that a majority of the Congress at the time just didn't like gay people. Again, from Tauro's opinion in Gill v Office of Personnel Management:
"In sum, this Court is soundly convinced, based on the foregoing analysis, that the government's proffered rationales, past and current, are without "footing in the realities of the subject addressed by [DOMA]." And "when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest," this Court finds that DOMA lacks a rational basis to support it... ...As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."
And that's what I want you to be looking for today: does the opinion from California look beyond strict scrutiny and analyze this case under rational basis review--and if they do, will the challenge to Prop 8 be upheld, even under a standard that is easier to defend? If Prop 8 fails, even under rational basis, it's going to be a lot tougher for the Supreme Court, who we assume will eventually be getting this case, to justify keeping the law alive. That's because they would presumably have to find some rational basis of their own to assign to the law, which, so far, has proven to be rather a tough thing to do. There's still a few hours to wait, so go grab a coffee, settle back, and wait for the fun...but it will indeed be a big legal deal, especially if a rational basis analysis is applied, and Prop 8 still fails.

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we expect a ruling between 1-3 pm pacific time; the american foundation for equal rights folks will be doing a presser as it's released, and info on that will be located here.

Chitown Kev | August 4, 2010 2:44 PM

IIRC, wasn't this, in part, the significance of the argument that Proposition 8 was motivated by anti-gay animus and (per Romer v. Evans) that cannot stand?

yes and no: rational basis analysis assumes that, absent any rational basis for a law, animus was the purpose behind the law's passage, and that's not an acceptable basis for passing a law, so the law fails.

that is not a concept that springs from roemer, however, even though it was applied there; in fact, one of the court's most infamous rulings, plessy v feguson, applied rational basis analysis to uphold the concept of "separate but equal" that was later struck down in brown v board of education.

What about intermediate scrutiny? That possibility was not addressed, it is more rigorous than rational basis but less rigorous than strict scrutiny.
Any thought?

Chitown Kev | August 4, 2010 4:22 PM

Here's the wikipedia entry for intermediate scrutiny...which was the judicial standard used in the marriage cases in Iowa and Massachusetts, I believe...

What's interesting to me about intermediate scrutiny is the way intermediate scrutiny has been applied to speech.

i don't know what i think about intermediate scrutiny, or if such a thing really exists.

***it's breaking right now: prop 8 is overturned***

the concurrances in craig v boren are all over the place, and despite the 9th's ruling, i think there's plenty of room to debate whether such a doctrine exists or not.

Thanks for keeping the readers up to date as they waited on the judge's verdict, Don. You made for a great post while we waited on the edge of our seats!

you're more than welcome--but of course, now comes the big "hang on the edge of our seat" as we wait to see where this all goes.