Why do you say that? Why, instead of these arbitrary levels of scrutiny, doesn’t the Supreme Court simply recognize a sliding scale that balances the governmental interest against the rights alleged to be infringed and the type of group being discriminated against? A vast majority of regulations and laws would still be subject to a deferential review, but others, like those with little to no governmental interest involved, would fall if they infringed upon an important right or against a discrete and insular minority. Hell, the Supreme Court has already recognized that the “strict scrutiny” v. “rational basis” wasn’t working well enough and so they created this intermediate level to deal with certain groups. Why the hell not recognize that the world of legislation, rights, and groups doesn’t fit into three tight fitting levels of scrutiny.
The levels of scrutiny are a sliding scale, one ISTM that adequately cares for the circumstance they now need to consider. DOMA could be struck down in the manner you describe, using the existing standards, standards that seek to do exactly what you seem to want: a law with little to no governmental interest involved would fall since it infringes upon an important right and against a discrete and insular minority. The current standards fail only to the extent they ignore them.
Worded differently, the rational basis standard is fine, it just shouldn’t be invoked here. Homosexuality should be defined as a suspect class, and if it is, DOMA falls.
Meeting the rational basis standard used to be easy, but the Supreme Court has mucked up it’s rational review analysis since City of Cleburne v. Cleburne Living Center. Normally, under rational review, it did not matter if a law had a discriminatory effect, the government only had to put forth a legitimate interest that the law was rationally related to in order to survive the standard. In Cleburne, the city denied a permit for mentally retarded individuals to live in a group home, citing the need to decrease traffic conditions that would result. Once confronted with such obvious bullshit, the Court beefed up the rational basis test and struck down the law, ruling that it was only motivated by hatred toward mentally disabled individuals.
It did the same thing in Romer v. Evans, and Lawrence v. Texas. Before Cleburne, the Supreme Court accepted the government’s justification for its law without question. Now, after Cleburne, Romer, and Lawrence, the standard is different. Now the Court is more willing to call bullshit on the government’s justification for a statute when it discriminates against a minority group.
I think the Court should have used heightened scrutiny in all those cases. That’s what heightened scrutiny is for, when any law against a class of people is treated as inherently suspect because there has been a history of discrimination against that class of people. But the Court wasn’t ready to give homosexuals heightened protection and so we have to deal with this tortured rational basis logic.
The Court can easily use the Cleburne line of reasoning to strike down Prop 8 and DOMA. I agree that the government can come up with some legitimate interest that the laws are rationally related to, but under Cleburne the Court can effectively call bullshit on their justification.
We’ll just have to wait and see what kind of rational basis standard the Court uses this time around.
It’s a “sliding scale” with three rungs. Not a whole lot of sliding going on. More like huge chunks. Which is why the Supreme Court in Romer and Lawrence have, in practice if not in word, created what could easily be a fourth rung, “rational basis with bite”. The continued addition of additional rungs to the scale indicate to me that it ain’t all that sliding yet.
No, the standards are way too broad. The entire spectrum of the analysis of Equal Protection and Due Process Clauses of the Constitution don’t fit into two (then three, now four) different ratchets. The “rational basis” test never fails. And the gap between that and the intermediate scrutiny is massive, and even more so to strict scrutiny. These huge gaps in the scrutiny level are exactly why the Supreme Court makes ruling like Romer and Lawrence, because they know the laws violate the Equal Protection (or due process) clause, but they may not fit in the pre-ordained slots. So you have the Court making … interesting … decisions while paying lip service to these standards of review while in reality changing them.
We agree on the scrutiny level, and the failure of DOMA. I’m just disagreeing on the mental gymnastics and tenuous reasoning the Supreme Court goes through to try and fit their ultimate ruling in line with these two( or three, or four) levels of scrutiny.
Nitpick: the Justice Department has concluded that there is a reasonable argument that DOMA survives rational basis scrutiny, and has chosen to defend it on that basis. They haven’t concluded that DOMA does actually pass constitutional muster.
Yes, but it’s not required by law for them to do so. You are just saying you think they have the right to change California law to accommodate what you think their law should be.
You are the one who elected to leave morality out of the decision making process. You therefore cannot argue that the California law is wrong unless there is another law that it is in conflict with.
And, yes, I do want the court to intervene on a moral decision as I expect every other human being to do so. The law serves morality, not the other way around. There is no legal obligation that trumps morality, and that includes being given some sort of division of labor so you can pass the buck. You are morally responsible for your own actions. Period.
I hate to do this, but the metaphor is too apt. All you are doing is making it where the judges are “just following orders.”
I still don’t get texualists or originalists. The Supreme Court has no jurisdiction here if we go by what the Constitution actually says. The very inception of judicial review served to change the laws to fit the court’s idea of how certain things should be. That’s literally the definition of morality.
Not sure I get the nitpick. The Justice Department says, “While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.” Obviously they aren’t SCOTUS and consequently can’t conclusively predict how SCOTUS would rule against that standard. But ISTM anyone who says they believe they can “advance reasonable arguments under that rational basis standard” likewise believes it meets that standard. Especially given the fact that the rational basis for the law can be conjured up and needn’t have been the actual objective, stated or otherwise, of the law in question.
Hamlet (and Lakai), the existence of a “rational basis with teeth” standard strengthens my point, does it not? A “without teeth” application works as I described. The “with teeth” standard is one more arrow in a manufactured quiver that permits the court to evaluate laws on a scale (Hamlet, albeit one that isn’t as fluid and broad as you’d like). And in any event, they ought to determine that homosexuality is a suspect class. I’m not seeing how their hands are tied or their processes inadequate to address this particular issue.
For the court to do so, they’d have to believe that was the direction the public at large was going. I would therefore be in support of such, even if I personally disagreed with them and society at large. I am always happy when the consensus morality become enshrined in law, no matter what the method.
I’m not talking about hatred, I’m talking about bias. And my point was that there are plenty of subtle ways a Justice’s bias or prejudice against a particular group could influence their decision. It’s not as simple as saying “We should expect a Supreme Court justice to set their personal feelings aside”, as you seemed to be saying.
Personally, I suspect (not know, but suspect) that Justice Scalia does have some anti-gay bias. Clearly you don’t share this suspicion. But again, my point is if any of the Justices are prejudiced against gays, we can’t realistically expect that they’ll be able to just factor this out of their judgement.
The Justices different opinions on gay rights are not really what I’m talking about. I’m talking about prejudices against gays as people and how they could influence their legal judgements. The comparable situation would be if the liberal justices were prejudiced against straight people, which personally I don’t see.
[quote=“tim314, post:349, topic:653936”]
I’m not talking about hatred, I’m talking about bias. And my point was that there are plenty of subtle ways a Justice’s bias or prejudice against a particular group could influence their decision. It’s not as simple as saying “We should expect a Supreme Court justice to set their personal feelings aside”, as you seemed to be saying.
Personally, I suspect (not know, but suspect) that Justice Scalia does have some anti-gay bias. Clearly you don’t share this suspicion. But again, my point is if any of the Justices are prejudiced against gays, we can’t realistically expect that they’ll be able to just factor this out of their judgement./QUOTE]
I didn’t say I thought he had no bias. But I think his bias against is no more evident than Kagan’s bias in favor (note her actions when she was head of Harvard Law School). I expect both can rise above whatever political biases they have.
I honestly can’t believe this issue is still hotly contested. Current laws are discriminatory at best, changing them causes no harm to anyone, and voters in states have spoken for it.
What’s left to hum and haw about?
Do people who are biased know that they’re biased? Are they able to detect all the subtle ways in which that bias affects their judgement? If not, it’s hard to see how they’d rise above.
With Kagan, you’re referring to the thing about restricting military recruiters because of Don’t Ask Don’t Tell, right?
I think there’s a difference between being strongly opposed to discrimination (which is how I see Kagan’s actions), and having a negative view of a class of people (which is how I see Scalia). In contrast, if Kagan’s bias manifested as viewing gays as morally superior to other classes of people, I would find that just as objectionable.
It is mistaken thinking to consider whether the court might create suspect classifications, or society.
It is the law in question which must create the suspect classification in order to apply strict scrutiny. The Supreme Court then recognizes that classification or not. It’s not quite the whole consideration but it is the most important and the starting point of suspect classification. The court may go on and look at other factors such as economic status and historical mistreatment and lack of political power, but if the statute doesn’t draw the line itself in the first place, the court doesn’t even begin analysis.
Are homosexuals a suspect or quasi-suspect classification in Prop 8?
To compare other suspect classifications, such as at issue in Loving or Brown, in both instances the statute created a suspect class by specifically naming races. In Prop 8, homosexuals are not singled out by being named. Rather, the claim that they are singled out is based on a difference in desired behavior–a gay person does not want to marry the opposite sex. In Loving and Brown, the classification admitted of no exceptions. Yet in Prop8 we have a classification that does not necessarily admit of no exceptions–hence the problem of needing to use the terminology “same-sex-marriage.”
This renders the true classification “all those who wish to marry someone of the same sex” because we also contemplate bisexuals marrying the same sex, and bisexuals are not homosexuals. Additionally, there are those who will desire same sex marriage without sexual consideration at all for the same reasons straights may marry for some of the advantages of marriage rather than sexual reasons. Just as there may be a flaming homosexual who is perfectly willing to marry the opposite sex, perhaps, because money is more important and someone of the opposite sex is the only one willing to marry them who has money.
National origin as a classification does not admit of any exceptions–one can only hail where one hails from–a person that is not Japanese isn’t occasionally included in Persons From Japan.
Religion as a classification does not admit of exceptions. A law that specifically targets Jews would not ever target a Muslim incidentally.
Sex is a quasi-suspect classification under some statutes. Again, any classification admits of no exceptions, again, unlike those who wish to have a same-sex marriage. You can’t be both without being transgendered, and that is a further class.
It has been pointed out that one-man-one-woman marriage laws do not, on their face, (okay, I haven’t read every state’s marriage laws, but AFAIK) speak to sexual orientation. These laws allow for opposite sex marriage regardless of sexual orientation–If we ask the question, “Does California allow a homosexual man to marry a straight or bisexual woman in exactly the same manner it allows a heterosexual man to allow a bisexual or lesbian woman?” The answer is undeniably yes. If the question is then asked “How does this law treat heterosexuals and homosexuals differently?” The only answer other than “It doesn’t” is "It treats them differently on the basis that most of one group doesn’t want what the law offers to heterosexuals and homosexuals alike, since it offers only what the one group would mostly want.
What a group wants is unprecedented as part of a test for suspect or quasi-suspect classification, with or without regard to why they might want it on the basis of nature or nurture.
Mrs. Loving wasn’t part of a suspect group because she wanted something other than what Virginia offered. She was in a suspect group because she was black, a race specifically mentioned in the statute as was her husband’s race.
Then there is the further problem that here we would create a classification we cannot identify on an individual level. There is no test for “gay.” And what is “gay” by solid evidence might be argued is “bi” later. A group we cannot identify which is subject to shifts on an individual level Sexual orientation may be immutable, but if it is, our ability to categorize people is still restricted to behavior at best, and that is subject to error. Additionally, there is no known test for gay.
Whether someone is black is not prone to mistake.
So, when did we get to recognizing suspect groups we cannot identify the individuals thereof, that necessarily contain exceptions to the suspect group within it, because of their desire being against the law?
There is a yawning gap between “we believe this law is constitutional” and “we believe we can argue in good faith that this law is constitutional”.
I would be fascinated to see some citations to caselaw for your conclusions David42. The idea that a state proposition specifically enacted to discriminate on the basis of sexual orientation does not, in fact, discriminate on the basis of sexual orientation seems a bit tough to swallow.
Not that I agree with your logic at all, but don’t you think that when Adam and Steve go to the county office to get a marriage license to wed each other that they are “recognized” as being of the same sex?
Emphasis added. But more voters in more states have “spoken” against it. Furthermore, the voters in CA, the state in question, spoke against it.
That’s a pretty poor argument, if that was what it was intended to be.
You put it more gently than I would have. The whole thing is gibberish.
Well, is the right to marry the same sex a right in itself, or a right stemming from homosexuality?
The suspect class can’t be homosexuals if it also prohibits a straight person or a bisexual from same sex marriage. So, since Prop8 prohibits not just homosexuals but anyone at all from a same sex marriage, the classifciation has to be broader than mere homosexuals.
Or can two heterosexual men marry under Prop8? If they can’t the law includes them in the ban on same sex marriage along with anybody else who would want to marry the same sex.
If homosexuality and bisexuality are two separate groups, and Prop8 distinctly singles out homosexuals, does it then permit bisexuals to marry the same sex?
How then are the two groups not merged into the true classification of “those who desire to wed the same sex?”
Equal Protection Clause litigation is no longer concerned about “suspect classes”. It imposes a higher standard on suspect classifications. It no longer matters if the classification in question is discriminating against a minority or not.