Bye-bye, Prop H8

photo by Jeff Chiu/The Associated Press

California’s Proposition 8 was overturned yesterday by US Federal District Court Judge Vaughn Walker on the basis of it violating the due process and equal protection clauses of the US Constitution. The opinion is a blast to read – a truly feminist piece of legal writing. Here is one of my favorite excerpts:

The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

WHAT!?!? The meaning of marriage has changed over time? Women are no longer property? They aren’t even required to stay in the home? Radical.

All jokes aside though, it was a great ruling and a great opinion – along with a great record of the facts for when the decision is appealed, which it surely will be. Ironically, Judge Walker was appointed to the bench by Bush 41 (after a failed nomination by Reagan, blocked in part by Nancy Pelosi and Ted Kennedy, who were concerned with Walker being anti-gay). I’m not one of those people advocating for Judge Walker to be appointed to the next available Supreme Court Seat – I’m not too familiar with his approach to judging, law and economics – but I do have another prediction about the Supreme Court. I think that when it comes down to it, the Court – the Chief Justice included – will be on the right side of history. After all, as Judge Walker’s clerks painstakingly laid out in the opinion, legal precedent is on our side. An explanation of legal terms after the jump.

Thanks to Erika Rickard HLS ’10 for this explanation of the different levels of scrutiny used by our court systems.

There are three levels of scrutiny that the courts apply to different types of cases:

  • Strict Scrutiny – the highest level of scrutiny, which means that the burden is on the government to prove that they really need to be doing what they’re doing, consequences be damned.
    • The court only applies strict scrutiny in two situations:
      • 1) where the government is somehow constraining a fundamental right (like marriage, voting, or interstate travel), or
      • 2) where the government is discriminating against what they call a suspect class – a weird term for a group that has been systematically discriminated against in the past, and therefore any action that a government does that discriminates against them is automatically suspect. Under the federal constitution, the only two groups that have ever been considered a “suspect classification” are race and nationality.
    • The standard is technically like this: the government must prove that whatever they’re doing is NECESSARY to achieve a COMPELLING government interest. That’s a two-part test: the interest that the government is supporting must be a compelling one, and the action that they’re taking must be necessary to achieve that interest.
  • Intermediate Scrutiny / Mid-level Scrutiny – a vague, ambiguous no-man’s land that isn’t as harsh on the government as strict scrutiny, but also isn’t as protective as rational basis review.
    • Intermediate scrutiny pretty much has been applied to gender discrimination, in situations like men trying to get into state university women’s nursing programs
    • The government in an intermediate scrutiny case must prove that whatever they’re doing is SUBSTANTIALLY related to an IMPORTANT government interest. See how ambiguous that is? The same two-part test, just a little watered down.
  • Rational Basis – the most common level of scrutiny, the way that government actions are most often looked at.
    • To get a law overturned under rational basis review (which is what the judge applies throughout the case, just to be safe), the person who was discriminated against has to prove that the government’s actions are not RATIONALLY related to a LEGITIMATE government interest. The burden is on the plaintiff here, not the government, so it’s usually really hard to get a government action (law / policy) thrown out on this basis.

The first part of the opinion (p. 109, the “due process” part) is about marriage, which as been considered a fundamental right per the Constitution.

The second part (the longer, “equal protection” part) is the part that focuses on discrimination against people based on their sexual orientation, and whether the government interest is worth the discrimination that results.