The doctrinal superstructure of equal protection analysis is somewhat complex. However, at the end of the day, there is a limited set of fundamental questions the Court may address to determine the outcome in both of the marriage equality cases currently before it: Hollingsworth v. Perry and Windsor v. United States.
By way of background, Perry is the case coming out of the 9th Circuit dealing with the constitutionality of California’s anti-gay-marriage referendum, Proposition 8. Windsor comes out of the 2d Circuit and is one of several current challenges to the federal Defense of Marriage Act (DOMA).
The Court accepted certiorari review in both cases last Friday.
Question 1: Do the Defendants Have Standing to Bring the Appeal?
In both cases, the government (the State of California for Proposition 8 and the federal government for DOMA) initially was charged with defending the challenged law, but, in both cases, the government ultimately declined to mount a defense on appeal. Accordingly, in California, supporters of Proposition 8 intervened to take up the defense, while DOMA is now defended by a coalition of members of Congress.
It is not clear, however, if such groups can intervene in this way when the government declines to defend a law. Do such groups have a sufficiently concrete legal interest that confers standing upon them? In other words, do they have a dog in this fight? If the defendants do not have standing to bring the appeal, then the Court does not have jurisdiction over the matter and must dismiss it.
Without going into an extensive examination of the law of standing, I would be surprised if the Court dismissed either appeal on this basis. Although the question plays out somewhat differently in the DOMA case versus the Proposition 8 case, to hold that the executive branch may simply decide to abandon a law that was enacted through the democratic process is troubling, to say the least. This amounts to a form of judicial process veto for the executive branch over the will of Congress of, in the case of Proposition 8, the will of the people.
Question 2: Do the Laws Survive Rational Basis Review?
Rational basis review is the default standard in all equal protection cases. It is the lowest level of judicial scrutiny available for such claims. Accordingly, if a law fails even deferential rational basis review, the Court need not go on to consider whether any form of heightened scrutiny applies. Alternatively, the Court may apply rational basis review if it concludes that DOMA and Proposition 8 (1) do not rely on a suspect or quasi-suspect classification and (2) do not implicate a fundamental right. These are the only cases in which heightened equal protection scrutiny is available.
Sub-question 2-A: Are the laws based in unconstitutional animus? While the Court has yet to offer a unified theory of animus, it has been clear that animus—which could be broadly characterized as an ideology of social-group supremacy—is never a valid basis for a law, and therefore defeats even deferential rational basis review. If the Court concludes that DOMA and/or Proposition 8 are based in animus, it can arguably invalidate the laws on that basis alone.
Sub-question 2-B: Are the laws rationally related to a legitimate state interest? The answer to this question likely depends on which “version” of rational basis review the Court applies. If the Court applies traditional rational basis review, the justifications for each law will likely be judged sufficient—under this standard, even purely speculative justifications for a law are enough to save it. But if the Court applies a more vigorous version of rational basis review, the defenders of the laws will have to demonstrate that the laws are actually achieving the goals they have set out to achieve, and this will be difficult in both cases, as the means and ends are attenuated.
Question 3: Do the Laws Survive Heightened Scrutiny?
There are two routes to heightened scrutiny (a term which includes both the strict scrutiny and intermediate scrutiny standards): showing that a law is based on a suspect or quasi-suspect classification or showing that the law uses any classification of persons, suspect or not, to interfere with a fundamental right.
Sub-question 3-A: What is the classification at issue? Many people think that it is self-evident that sexual orientation is the classification at issue. Even more obvious, in my view, is the fact that anti-gay-marriage laws must rely on gender classifications on their face to accomplish the goal of limiting marriage to opposite-sex couples. Gender has already been established as a quasi-suspect classification that triggers intermediate scrutiny. But many courts have rejected the notion that marriage bans are a form of sex discrimination because such bans don’t differentially burden women versus men. This reasoning is patently wrong in the face of precedent, but there you have it.
It is also possible that the Court could conclude that the laws do not discriminate on the basis of sexual orientation, because no mention of orientation is made on the face of the laws. However, the legislative history and campaign literature around both laws make it clear that homosexuals were the target of the legislation, so this seems an unwise path.
Sub-question 3-B: Is sexual orientation a suspect classification? This is kid of the big one. Some commentators believe that the Court will do just about anything to avoid answering this question in the affirmative, while others believe the time is ripe for the Court to take this momentous step. There are good arguments on both sides, but I think the question will again come down to which test the Court applies. Traditional suspect classification analysis is preoccupied with political powerlessness and immutability, while there is a modern trend toward looking at whether the trait is relevant to one’s performance in society. If the Court focuses on the latter inquiry, I think chances are good that it will deem sexual orientation a quasi-suspect classification.
But this is a thorny issue in any case.
Sub-question 3-C: Do the laws interfere with a fundamental right? Marriage has long been recognized as a fundamental right. It would seem obvious, then, that laws regulating who may and may not get married interfere with this right, thus triggering strict scrutiny review. But, again, in a world characterized by fine distinctions, nothing is really obvious. The Courts that have answered this question in the negative have reasoned that, while there may be a recognized fundamental right to marriage, that must be read as “traditional heterosexual marriage.” There is patently no fundamental right to same-sex marriage.
This is tantamount to the Loving Court asking not whether there is a fundamental right to marriage that all citizens enjoy as a matter of liberty and self-expression, but whether, in 1967, society recognized a fundamental right to interracial marriage.
It is simply the wrong question.