Second the question. I think it’s a very valid one. We are, of course, aware of what the law currently is. But in your personal opinion, Bricker, is that the appropriate level of scrutiny? And what would justify imposing intermediate or strict scrutiny? (Side question: why are the levels of scrutiny assigned to various types of alleged discrimination as they are?)
See, you keep using this phrase, “make law.” And I have to keep calling bullshit on it. Ruling on the constitutionality of a law is not making law.
Not true.
It has nothing to do with giving judges power. Judges already have the power to interpret constitutions. Judicial review isn’t some wacky notion that’s sprung up out of nowhere, it’s been the law of the land for over 200 years. You know this, so your insistence on painting judicial review as some scary uncharted territory is extremely puzzling. I’m not Pitting the court because they refused to seize some alien power. I’m Pitting the court because it failed to exercise the power of judicial review that it already has to strike down a law that in my admittedly lay opinion is blatantly unconstitutional.
BTW, I’m guessing that the justices in this case chose not to because they weren’t convinced that homosexuality was immutable. That’s probably why most regular folks think it’s OK to discriminate, too. It’s a lifestyle choice, not an intrinsic part of a person.
At the risk of greatly oversimplifying a very complex and contradiction-riddled area of law, the approach used to be: racial classifications get strict scrutiny - the Fourteenth Amendment was designed to cure racial discrimination - and all other classifications get rational review. As gender classifications came under more intense social pressure to change, and it was clear that laws promoting invidious gender discrimination would survive rational review, the concept of intermediate scrutiny was simply created out of whole cloth to solve that problem. I don’t care for that process, but I also acknowledge that the rule exists and it’s good law.
To answer the first question, which was seconded from John Mace’s query: my usual approach to these things – an application of an activist, result-oriented new rule – is to advocate for no further innovations. That is, I would not undo a hundred years of jurisprudence to place into effect the methods of analysis and philosophy that I believe is wisest, but I would stop treading down the erroroneous path. Under that approach, I would limit intermediate and strict review to the issues to which they already apply.
However, in this particular instance, I have to say that the analytical distinction that permits intermediate review for gender cases and does not permit it for sexual preference cases is… pretty damn small. So I can see a case being made, even by jurists that have resolved to do no more meddling, to add sexual preference to the intermediate review simply because it’s NOT innovation, in any actual, real, non-legal sense; it’s the application of the existing principle.
But it’s a move that owuld have ot be made by the Supreme Court. Lower courts are obligated to apply the law as is.
So – short answer: I think the law SHOULD call for intermediate scrutiny.
It’s the METHOD they use to apply judicial review that is under attack here, Otto, not the existence of judicial review itself. Judges have the power to void laws that conflict with the Constitution – but the analytical methods they use to decide what the Constitution means are highly variable. I contend that judges should simply apply the plain, ordinary meaning of a reasonable reading of the text of the Constitution – not a strict interpretation, not a loose one – and not go beyond the text. When judges must find support for their idea of what the Constitution says in “penumbras” or “emanations” they have gone too far.
Any reason it has to be the SCOTUS? Why not a state SC based on a state constitution, if that constitution has language equivalent or similar to the 14th?
Y’know, if there were a judicial philosophy which was pretty much guaranteed to advance civil rights, protect civil liberties, and just in general advance liberal causes while hindering conservative ones, I’d be a real strong believer in it, too, and would even stand up for it on the rare occasions when it failed to advance my interests, knowing that on many more occasions, it would advance them. It would have the tremendous advantage of advancing my political agenda through the courts, while I maintained that no such thing was occurring.
I guess that’s why I’m so dubious about conservatives’ claims about their attachment to the doctrine of judicial restraint.
Without having delved into the entire judicial history of the state of Washington, my non-lawyerly opinion is that the plain text
pretty clearly invalidates laws passed to promote bigoted or exclusionary social policies, without resorting at all to the dreaded penumbrae or emanations.
Bricker, thank you for the explanation and commentary. We might actually be approaching common ground!
Otto, I need to play devil’s advocate here for a moment. Let me make clear that I am not myself making an argument I consider inane, but bringing it forward so that we can discuss intelligently how to deal with it.
From a social standpoint, there is no question in my mind, or anyone else’s, that laws limiting marriage to opposite-sex couples discriminates against gay people in favor of straights. Why? Because the person whom the straight person wants to marry is permissible, but the person whom the gay person wants to marry is not.
But from a strictly legal standpoint, the law does not work a discrimination, because it grants strictly equal rights as to whom both straights and gays may marry, i.e., someone of the opposite sex, not otherwise committed, not within the bounds of consanguinity, sane, consenting, and of legal age. The issue of whom one might want to marry is sidestepped; the class of people from whom it is legal to choose a marriage partner is defined. I realize that’s like giving both a beggar in the streets and Bill Gates a $10 food voucher, but the point is that as regards what the law specifies, there is no stated discrimination.
The State of Washington court system is going to find it very difficult to identify where its DOMA grants a specific privilege to one group that is explicitly denied to another group. Any two people of the same sex and marital status get treated exactly identically under the law; it’s merely that it defines potential marital partners in a way that excludes the desired partners of gay people.
I am, of course, not bringing this obnoxious anti-gay canard forward to seriously advocate it, but rather to explore practically how to get past that bit of invidiousness. I suspect some of the jurisprudence that dealt with grandfather clauses and similar racial issues where discrimination was cloaked might be relevant, but I don’t know. It looks like the idea that human beings might have preferences and choices is something not given legal cognizance where marriage is concerned. That seems silly.
To restate my point here, this silly “you already have equal rights” argument needs to be addressed from a strictly legal standpoint, not waved away as merely anti-gay rhetoric (even if it usually is just that) to identify the flaw in the argument and how to combat it.
Because IMO that is the way to crack the court impasse. The problem is that the law rarely requires that we get what we want, and as phrased, it’s an issue of you preferring a choice not made legal. I can detect that there’s a fault in that argument, but don’t have the legal expertise to nail down where it is and how to exploit it. Anyone?
Sure, sure. And when the Supreme COuirt was handing down decisions like Lochner?
Problem is you’ve forgotten about stuff like that, merely because it happened a hundred years ago.
I can’t speak for all states - but often, in a state’s previous case law, you will find statements that say things like, “Our Equal Protection Clause is interpreted similarly to the federal constitution’s…” This is a useful tool, because it permits states to track with federal case law without the need to develop thier own. Of course, it happens as well that states may decide their own constitution gives more extensive protections than the federal one does.
In either event, the state supreme court would be free to make new law or overturn their previous precedent, if it existed, saying that the protections of the federal EP and state EP clauses were coterminous. If there was no precedent in place; this is an easier decision than if they have to overturn a previous statement to the contrary – what other decisional law is then suspect?
Does it?
Here’s the plain text, which I reproduce so readers will have a ready reference as it’s discussed:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
Remember that I said a reasonable, fair reading – not overly strict nor overly loose, but reasonable and fair.
Now, what does that sentence mean? The state does not mean to prevent itself from, for example, preventing convicted felons from ever possessing handguns, does it? Yet that kind of law does in fact grant to some citizens a privilege or immunity that is not on the same terms equally available to all citizens - right?
Similarly, the law provides that CURRENT felons who have not completed their sentences must be locked in prison – that is a pretty clear privilege of freedom to walk around in the street that’s given to one class of citizens but not another.
So a fair, reasonable reading of the text does require that we develop some test to see how to apply it.
That judicially-created test is the rational basis test, unless the class of citizens disadvantaged is a special class, in which case a higher level of scrutiny applies.
Now, why do I favor this test, when it’s not absolutely and unambiguously mandated by the text?
1 - Because it’s firmly ensconced in existing case law, and I do not favor upsetting the applecart; and
2- Because the test reasonable and fairly applies the concept while giving great deference to the elected legislature.
The “it’s not an immutable characteristic” reasoning bothers me. Washington State protects other folks with things that really aren’t an “immutable characteristic”–religion and creed. These are completely choices–at least I don’t think that anybody is has proven that people are born a particular religion or a member of the Rotary*.
Yesterday morning was spent with me explaining to my opposite sex partner that I’m “married” to that we will now begin hoping for civil union legislation and the minute it passes, we’re going to be civilly united. We got married with no intent to procreate–I haven’t been able to have kids since I was 23, was I supposed to never marry again?–and if marriage is really about biological children of a relationship that ain’t what I have.
Why can’t we just have civil marriage and religious/sacramental marriage be separate?
The anti-gay faction is already planning to campaign against the dissenters, now that they’ve “smoked them out”–I myself was very careful to note who voted in the majority.
Fuckers!!!
*I can’t think of a real creed right now; cut me some slack–it’s the Pit.
Actually, advocates of Judicial Self-Restraint have been many and varied:
[ul][li]Oliver Wendell Holmes, Jr.[/li][*Louis D. Brandeis (at least some of the time)
[li]Felix Frankfurter[/li][li]John Marshall Harlan II (oddly, in Griswold it was Hugo Black who disagreed with Harlan in favor of restraint)[/li][li]Harlan F. Stone[/ul][/li]
And remember that the principle is one of structuring jurisprudential action, not one necessarily governing an outcome. While one aspect of it sets the presumption of constitutionality of a statute, another governs how the court achieves results. The actions of the Vermont and Massachusetts high courts with regard to the gay marriage issue were arguably self-restraining, in that they made a finding of unconstitutionality but declined to substitute a judicial remedy, instead deferring to the legislature to institute a law that conformed to the state constitution.
It is that minimalist rule: deference to the other branches, presumption of constitutionality putting the onus on the challenger, results and remedies narrowly tailored to deal with the particular case at hand, and deference to the legislature’s right to fix the problem identified, that together constitute the principle of judical self-restraint.
And many conservative judges are activist, not self-restraining, from the perspective of what the term really means in jurisprudence, as opposed to its use in sound bites.
I suggested this above; let me use this opportunity to repeat this sentiment – yes, indeed there are. And I don’t like them, either. I would be against a finding that a fetus is a person within the meaning of the Fourteenth Amendment (and abortion is thus prohibited) even though I believe that a fetus is a human being and deserving of legal protection.
Except that freedom of religion is explicitly protected in the constitution. No one needs to infer it from the 14th amendment.
And still more strongly protected by the Washington state constitution, which guarantees “absolute freedom of conscience.”
Yep, it is. Never said it wasn’t.
I find the immutable characteristic reasoning lacking. YMMV.
I live in this state and am pissed off at this decision. Like the anti-gay crowd, I will now use this information about these judges in future elections. I have no respect for the judges who agreed that legalized discrimination is okay based on what a bunch of asshole legislators may possibly have thought, particularly when the evidence is pretty clear that what they actually thought was “ooh, gays, icky.”
Please allow me to reinterate the important part of my earlier post.
Fuckers!!!
Well, yeah, it does, and I’m not sure why you’re dragging convicted felons into it (assuming Washington actually does restrict ex-cons from owning guns, which I don’t know that they do, and even if they do it’s not really relevant). I was talking about “bigoted or exclusionary social policies” and locking someone up for being convicted of a felony isn’t a bigoted or exclusionary social policy (unless of course the actual felony is itself born of bigotry, say for example sodomy laws). Not sure why you’re muddying the civil waters with criminal issues but they don’t strike me as pertinent.
The bottom line remains this, and it’s remained this for me since I first started contemplating issues of same-sex marriage some 20 years ago. If a woman can marry a man and I can’t then I’m being discriminated against on the basis of my sex. Such discrimination is unsustainable under the federal constitution and every state constitution I’ve ever seen. Any judge who doesn’t recognize that is a bigot or a fool. Period, full stop, the end.
If you were the person who could authoritatively interpret the state or federal constitutions, this might mean something. But for you to insist they mean X, when the guys that actually determine what they mean reach conclusion Y… continuing to insist that X is correct is somewhat quixotic.