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Oral arguments were heard yesterday in Kitchen v. Herbert. There's a link to the audio file on the tenth circuit website if you want to listen to it.
No real surprises, except one (for me). Prior to this case, just about every court that has determined that traditional definitions of marriage violate the constitution have determined that there is no rational basis for such laws. Consequently, it was unneccessary in any of those cases to determine whether such laws ought to be subject to a heightened form of scrutiny (whether it be strict scrutiny, typical of race-discrimination cases, or so-called "intermediate scrutiny," usually applied in gender-discrimination cases). In this case, by contrast, one of the judges very explicitly said that the traditional marriage definition would likely pass a rational basis test, though not heightened scrutiny. It's something that could end up being important, not so much in this case (where Windsor strongly suggests the ultimate outcome anyway), but in other cases where laws have disparate effects on gays. In fact, this is probably the one area where the 10th Circuit would be able to make any substantive legal contribution. If the Supreme Court is poised to dismiss this particular law as failing to pass even rational basis review (as it seems prepared to do), then the 10th Circuit's decision regarding the appropriate level of scrutiny could survive appeal, thus setting the standard by which judges determine the constitutionality of other laws drawing distinctions based on sexual orientation.
(That's assuming, of course, that the levels of scrutiny mean anything to any judges any more. As a formal matter, the doctrine still gets lip service, but more and more, it seems to be an overly verbose way of saying that courts must ask whether a given government objective justifies a given form of discrimination, recognizing that the interests underlying either of those factors may vary from case to case.)
No real surprises, except one (for me). Prior to this case, just about every court that has determined that traditional definitions of marriage violate the constitution have determined that there is no rational basis for such laws. Consequently, it was unneccessary in any of those cases to determine whether such laws ought to be subject to a heightened form of scrutiny (whether it be strict scrutiny, typical of race-discrimination cases, or so-called "intermediate scrutiny," usually applied in gender-discrimination cases). In this case, by contrast, one of the judges very explicitly said that the traditional marriage definition would likely pass a rational basis test, though not heightened scrutiny. It's something that could end up being important, not so much in this case (where Windsor strongly suggests the ultimate outcome anyway), but in other cases where laws have disparate effects on gays. In fact, this is probably the one area where the 10th Circuit would be able to make any substantive legal contribution. If the Supreme Court is poised to dismiss this particular law as failing to pass even rational basis review (as it seems prepared to do), then the 10th Circuit's decision regarding the appropriate level of scrutiny could survive appeal, thus setting the standard by which judges determine the constitutionality of other laws drawing distinctions based on sexual orientation.
(That's assuming, of course, that the levels of scrutiny mean anything to any judges any more. As a formal matter, the doctrine still gets lip service, but more and more, it seems to be an overly verbose way of saying that courts must ask whether a given government objective justifies a given form of discrimination, recognizing that the interests underlying either of those factors may vary from case to case.)
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