Friday, August 27, 2010

What I got out of reading the Prop. 8 ruling, part 6 of 7

We're through with the "Findings of Fact" and now we move to the final section, the "Conclusions of Law." I've decided to break my coverage of this section into two posts. Today I'll spend some time prepping you by reviewing the legal terms once again, which are critical to understanding the judge's conclusion, and then I will summarize the "Due Process" half of this conclusion. In my final post I will summarize the "Equal Protection" half.

So let's do some review. The plaintiffs' case against Proposition 8 is that it violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. If you read Section 1 of the Fourteenth Amendment, it says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That part I italicized contains the Due Process and Equal Protection Clauses. Due process protects individuals against arbitrary government intrusion into life, liberty or property. In other words it has to do with interfering with a fundamental right. Equal protection has to do with treating all citizens equally under the law, since we believe that "all men are created equal."

Of course, more often than not, laws have to treat citizens unequally (for instance, allowing 18 year-olds to drive but not 12 year-olds). But when a law does classify one group to be treated differently than another, that classification must be subject to what's called rational basis review. This means showing that the law's unequal treatment a certain classification of people is rationally related to a legitimate government interest. And by the way, even a hypothetical government interest will do. Usually, showing that a law can pass the standard of rational basis review is a piece of cake.

Now here's the critical point. If you can demonstrate that a law interferes with a fundamental right (Due Process), or that a law denies the Equal Protection of a suspect class (more on that in a minute), then it has to do more than just pass rational basis review. You can't come up with any old government interest to justify such a law, but you have to show that it survives what's called strict scrutiny. Strict scrutiny means demonstrating that this law serves a "compelling government interest" (national security at stake; multiple lives in danger; doesn't violate constitutional protections). And not only that, but it must be "narrowly tailored" to achieve that government interest using the "least restrictive means." So if the law isn't directly on target to achieve this compelling interest, if it either does too much or too little, then it won't pass strict scrutiny. It gets the eject button.

Strict scrutiny, then, is applied in two cases: 1) when a law interferes with a fundamental right, or 2) when a law denies equal protection to a suspect class. Now a suspect class is not just any old group of people but a specially protected classification of person. Currently the U.S. Supreme Court recognizes race, national origin and alienage (that is, being a foreigner) as suspect classifications, meaning that any law that targets a group of people because of their race, national origin or alien status to be treated unequally must pass the highest standard of scrutiny (strict scrutiny). Currently, sexual orientation is not on the list of suspect classifications.

Okay, now for the conclusion of the ruling. Before we dive into the details, I'll give you a one paragraph summary of the whole thing. The plaintiffs challenged Prop. 8 on two grounds: 1) it interferes with their fundamental right to marry (contra Due Process), 2) it discriminates against gays and lesbians, targeting them because of their sexual orientation (contra Equal Protection). Because Prop. 8 interfered with a fundamental right (the right to marry the person of one's choice), strict scrutiny was applied. On that count Prop. 8 failed. As for Equal Protection the judge said the plaintiffs presented enough evidence to show that sexual orientation ought to be treated as a suspect class, and therefore strict scrutiny should also be applied here. However, because the proponents failed to show how Prop. 8 met even the standard of rational basis review (the "piece of cake" standard,) it wasn't necessary to make the case for sexual orientation as a suspect classification. In other words, this was a slam dunk for the plaintiffs.

(As a side note, even if the judge did overreach in his conclusions under heading #3 of the "Findings of Fact" (see my criticisms in the last post), the overall case was so overwhelming in the plaintiffs' favor, the question of whether the judge did overreach has become ultimately irrelevant, it seems to me.)

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Now, my summary of the Due Process half of the "Conclusions of Law":

"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."

The Due Process Clause recognizes the freedom to marry as a fundamental right. The parties don't question whether the right to marry is fundamental; the question presented is whether the plaintiffs are seeking the right to marry or, because they are of the same sex, whether they seek recognition of a new right.

Throughout history marriage has retained certain characteristics: two parties freely consent to form a relationship; this relationship becomes the foundation of a household; the spouses consent to support each other and any dependents. The State regulates marriage because marriage creates stable households which in turn create a stable and governable populace. The State recognizes the individual's choice to build a family and that this is a central part of that individual's life. The State has never inquired into the procreative capacity or intent of the couple before granting a marriage license, recognizing that marriage is more than a license for procreative sexual intercourse.

At one time there were race restrictions on marital partners, as well as the requirement that a woman's legal identity be subsumed by her husband's under the doctrine of coverture. The lifting of such restrictions and requirements did not change the definition of the right to marry. Race restrictions are now recognized has having stood in stark contrast to the ideas of liberty and choice inherent in the right to marry. The movement of marriage away from state-mandated gender roles "reflects an evolution in the understanding of gender rather than a change in marriage."

In the State's eyes, gender no longer forms an essential part of marriage, since it sees marriage as a union of equals. Same-sex couples are equally capable of performing their marriage obligations as opposite-sex couples. The right to marry is the right to choose a spouse and join together to form a household with mutual consent. The plaintiffs are not seeking recognition of a new right. To characterize their objective as "the right to same-sex marriage" suggests that they are seeking something different than what opposite-sex couples enjoy. "Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

The availability of domestic partnerships does not fulfill California's due process obligation to same-sex couples. California maintains two separate and parallel institutions that provide essentially the same rights and obligations: the historic, highly respected institution of marriage; and the new, unfamiliar and less socially meaningful institution of domestic partnership. Domestic partnerships are only available to opposite-sex couples if one partner is at least sixty-two years old (for the benefit of those eligible for benefits under the Social Security Act). But other than this exception, "California allows almost all opposite-sex couples only one option--marriage--and all same-sex couples only one option--domestic partnership."

Domestic partnerships do not fulfill California's due process obligation to plaintiffs because 1) domestic partnerships are distinct from marriage and don't have the same social meaning, and 2) they were created specifically so California could offer to same-sex couples the rights and benefits of marriage while withholding marriage from them. "California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples."

Because plaintiffs seek to exercise the fundamental right to marry, their claim is subject to strict scrutiny. However, as will be shown later in the Equal Protection analysis, Proposition 8 cannot even withstand rational basis review. "The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest." Moreover, the fact that the majority of California voters supported Prop. 8 is irrelevant since "fundamental rights may not be submitted to [a] vote; they depend on the outcomes of no elections" (West Virginia State Board of Education v Barnette).

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Next up: my summary of the Equal Protection half of the "Conclusions of Law."