The Bigots’ Last Hurrah

[RobinFinderson]

Here's a very quick and incomplete crash course on this topic. The 14th Amendment contains both a due process clause and equal protection clause.

Laws are ruled unconstitutional under the equal protection clause if they don't pass either a strict scrutiny or rational scrutiny test. A strict scrutiny test is applied if the law concerns a "suspect class" of people. Amongst other classifications, racial minorities are regarded as a suspect class- women are not completely regarded as suspect class. Strict scrutiny means that the government better have a very compelling reason or the law will be unconstitutional under the strict scrutiny test. Hardly any law can meet this standard. If the law doesn't concern a suspect class, then a rational scrutiny standard is applied, the government only needs a rational reason behind the law for it to be upheld.

There is no way in hell the supreme court is going to deem gays to be a suspect class. That would open up a pandora's box that they would rather just not have to deal with. If they grant the suspect class designation for gays, then it will produce a cascade of follow-up law suits involving laws (e.g. adoption laws, don't ask don't tell) that the SC won't want to deal with by virtue of a ruling in a gay marriage case. And again, they've never even given this classification to women. They're going to subject laws that touch upon gays to a tougher standard then they do for ones that touch on gender. Supposedly, the counsel representing the anti-Prop. 8 people didn't even bother attacking the prop. under the equal protection clause.

The far more likely way that gay marriage bans will be overturned is under the due process clause. If a "fundamental right" is recognized by the court, then the due process clause prohibits the gov't from having a law that violates this fundamental right. A fundamental right has been found, amongst other things, for the right to both procreate and use birth control. It's not a huge leap to think that the court could find a fundamental right for one human being to marry another human being (as long as they're both of proper age). It's far more narrow than the equal protection clause and it won't open the court up to a slew of additional lawsuits dealing with laws that have a lot more public support (e.g. gays can't adopt children).

CMBF, I appreciate your explanation of the difference between equal protection and due process, but in just about everything I have read on the gay marriage issue is is equal protection that seems to be compelling the courts to decide in favor of gay couples seeking marriage. What can you say about your explanation and the apparent discrepency?

[wuapinmon]

Here's a very quick and incomplete crash course on this topic. The 14th Amendment contains both a due process clause and equal protection clause.

Laws are ruled unconstitutional under the equal protection clause if they don't pass either a strict scrutiny or rational scrutiny test. A strict scrutiny test is applied if the law concerns a "suspect class" of people. Amongst other classifications, racial minorities are regarded as a suspect class- women are not completely regarded as suspect class. Strict scrutiny means that the government better have a very compelling reason or the law will be unconstitutional under the strict scrutiny test. Hardly any law can meet this standard. If the law doesn't concern a suspect class, then a rational scrutiny standard is applied, the government only needs a rational reason behind the law for it to be upheld.

There is no way in hell the supreme court is going to deem gays to be a suspect class. That would open up a pandora's box that they would rather just not have to deal with. If they grant the suspect class designation for gays, then it will produce a cascade of follow-up law suits involving laws (e.g. adoption laws, don't ask don't tell) that the SC won't want to deal with by virtue of a ruling in a gay marriage case. And again, they've never even given this classification to women. They're going to subject laws that touch upon gays to a tougher standard then they do for ones that touch on gender. Supposedly, the counsel representing the anti-Prop. 8 people didn't even bother attacking the prop. under the equal protection clause.

The far more likely way that gay marriage bans will be overturned is under the due process clause. If a "fundamental right" is recognized by the court, then the due process clause prohibits the gov't from having a law that violates this fundamental right. A fundamental right has been found, amongst other things, for the right to both procreate and use birth control. It's not a huge leap to think that the court could find a fundamental right for one human being to marry another human being (as long as they're both of proper age). It's far more narrow than the equal protection clause and it won't open the court up to a slew of additional lawsuits dealing with laws that have a lot more public support (e.g. gays can't adopt children).

Thank you for taking the time to explain the two. Since the 14th Amendment contains both clauses, and since most of what I've read as the reason why state courts keep striking down laws is based on equal protection before the law, how do you see the SCOTUS' potential ruling someday being any different?

[KillerDog]

Thank you for taking the time to explain the two. Since the 14th Amendment contains both clauses, and since most of what I've read as the reason why state courts keep striking down laws is based on equal protection before the law, how do you see the SCOTUS' potential ruling someday being any different?

To my understanding, the SCOTUS has made it clear that they do not want to go that direction. They are willing to let state courts play around in that arena but they don't want the type of firestorm that occurred in the Civil Rights litigation fiasco. The Court went too expansive there and had to try and pull back without damaging stare decisis. It was really problematic. I agree that if the Supremes weigh in on this they will go with the idea of an expansion of rights penumbra. Using the logic of Roe and Casey will get protection without overly empowering the gay community.

[Color Me Badd Fan]

CMBF, I appreciate your explanation of the difference between equal protection and due process, but in just about everything I have read on the gay marriage issue is is equal protection that seems to be compelling the courts to decide in favor of gay couples seeking marriage. What can you say about your explanation and the apparent discrepency?

The state courts are deciding this issue based on the state constitutions. Different precedent and different underlying document. State courts and constitutions can be more expansive on their interpretation and granting of rights than the Feds if they want to.

Massachussets's ruling was based on the state constitution. If the ruling had infringed on some federally guaranteed right, then it would have gone in front of the US Supreme Court. But the ruling was expansive and not restrictive- in other words states are free to grant more rights than those that have been recognized by the Federal Constitution and Supreme Court.

But the leap to be made at the federal level is significantly easier under the Due Process clause as opposed to the Equal Protection clause. The Texas sodomy law was struck down on Due Process grounds (5 justices) with O'Connor concurring on Equal Protection grounds. Contraception and the right to procreate are two additional fundamental rights that have been recognized. The abortion cases fall under Due Process. Again, the Court will look for the most narrow ruling it can make to achieve the desired result. It's much more narrow to say that a human being has a fundamental right to marry another human being (required for Due Process) than it is to say that homosexuals are a suspect class (required for Equal Protection). Again, placing homosexuals in a suspect class opens up a can of worms the Court would rather not deal with.

[UtahDan]

Nice image. Reminds me vaguely of something ...

13 Enter ye in at the strait gate: for wide is the gate, and broad is the way, that leadeth to destruction, and many there be which go in thereat:
14 Because strait is the gate, and narrow is the way, which leadeth unto life, and few there be that find it.

Heh he.

[wuapinmon]

Wuap, you don't know what you're talking about on this.

"The right of same-sex couples to marry is also derived fromthe Fourteenth Amendment’s guarantee of equal protection."

[Color Me Badd Fan]

You still don't know what you're talking about. The decision was based on substantive due process, they never discussed any strict scrutiny or rational basis scrutiny, which is what they do when they're really basing something in equal protection. That was shoved into a paragraph of the opinion, but because they didn't actually do an equal protection test, the decision doesn't really provide any precedent as far as equal protection. Roberts dissent actually points out how stupid it was to throw the equal protection clause in there when the rest of the decision doesn't actually go through any equal protection analysis.

Get back to conjugating more Spanish verbs.

[Blueintheface]

And gay people may now get married so put away whatever it is you think the Proclamation To The Family is telling you.

[Indy Coug]

How's that Prop 8 drought doing these days?

[The_Tick]

How's that Prop 8 drought doing these days?

Lots of angry folks at church today.

[TripletDaddy]

How's that Prop 8 drought doing these days?

I think Utah has been in a drought position for a few years now

[BigPiney]

Lots of angry folks at church today.

Not a mention on this side of the sierra.