Prop 8 On Trial (Again)
The mainstream media, even before the horrific tragedy in Haiti, barely mentioned this, so I don't fault anyone for not realizing, but the Federal court case against Proposition 8 (which again suppressed the right of gays and lesbians to marry in California) began a week ago today.
The U.S. Supreme Court ruled a few days later that real-time dissemination of information from the trial would somehow harm the people seeking to uphold Prop 8, and so I haven't been able to follow the trial as closely as I would like. However, the American Foundation for Equal Rights, which brought the suit, is doing its best to keep the public informed in real-time on its site and via Twitter. (Historically, they've been a bit sluggish on getting information up on their own website -- even after it hits the media -- but hopefully this marks a new beginning and not a special effort during the hearings only.) There are also several law-savvy bloggers who have gotten seats in the gallery. My favorite (admittedly biased) one is the Prop 8 Trial Tracker, a project of the Courage Campaign Institute. Unfortunately, I have to base my conclusions on what I'm reading from non-professional and biased reporters, but I now think I have a sense of the legal strategy that's in play.
The approach the plaintiffs (that's the good guys in this case) seem to be taking is to challenge Prop 8 on a number of different fronts. They all boil down to the assertion that Prop 8 violates the 14th Amendment of the U.S. Constitution, which guarantees that everyone is an equal in the eyes of the law. (I'd love to see a 1st Amendment challenge as well, as limiting who may marry suppresses the rights of other religions to perform marriages they believe to be acceptable. But given the Court's general hostility to such challenges to polygamy laws, I can understand why no one has tried it.) However, the plaintiffs aren't taking only one strategy to do so.
You see, a law violates the 14th Amendment if it is targeted at a specific "suspect class" (that's legalese for "minority") and serves no "compelling state interest" (which is legalese for "unfortunate, but necessary given the serious nature of the threat we're facing"). A law also violates the 14th Amendment, no matter whose rights it affects, if it has "no rational basis" (which just means that the law is too stupid to be on the books).
The California Supreme Court (along with the supreme courts of Iowa and Connecticut) have declared gays and lesbians to be a suspect class. Thus far, the U.S. Supreme Court has not. The 14th Amendment challenges on LGBT issues that have succeeded there so far have all succeeded on "no rational basis" grounds.
To become a legal suspect class, the group in question must meet four criteria:
So it shouldn't surprise anyone that the plaintiffs have presented expert witnesses on the history of discrimination against gays and lesbians and the immutability of sexual orientation. The "intervenors" (who are defending Prop 8 since the actual defendants -- that's the state of California -- agree that it's unconstitutional) in the case thus far have been predictably countering that homosexuality is a choice (which it isn't), that anti-gay laws don't target gays (which they do), and that gays and lesbians are an extremely politically powerful minority. (Connecticut's supreme court famously ruled that if gays and lesbians were not politically powerless, they would already have the right to marry. I can't say I can fault the logic.)
But the plaintiffs have not put all their eggs in the suspect-classification basket. The majority of their argument has been fighting the rational basis of Prop 8. Most of the experts called to testify so far have been taking the official reasons for passing Prop 8 to task. Prop 8 does not protect children, they argue. Prop 8 does not protect heterosexual marriage. Prop 8 does not promote family values. This approach is the more difficult one, because if even one argument for Prop 8 (including, historically speaking, one which the court can just make up on its own without it even having been argued) still stands at the end of the trial, then Prop 8 stands. Thus far, from what I've read, the experts have done an excellent job proving that each and every talking point is either invalid or just the opposite of reality. But this remains an uphill battle.
If Prop 8 is overturned on rational basis review, that's not the slam-dunk for equality that a suspect-classification ruling would be. It sets a good precedent, but then every same-sex marriage ban across the nation and at the Federal level would have to be individually challenged, with both sides arguing how their ban is similar to or different from Prop 8, and debating whether their state has a rational basis for such a ban.
Of course, there's also a third possibility, which no one seems to be discussing. You see, gays and lesbians are a suspect class in California. It would be entirely proper for the court to rule that since California recognizes gays and lesbians as a suspect class, California may not pass a law targeted at gays and lesbians unless the law passes the strict scrutiny test (i.e, the law serving a compelling state interest, being narrowly tailored, and minimally restrictive), which Prop 8 would not.
This would be a fascinating ruling, because it would be the court essentially dodging the nationwide question. The battle would then be on to get gays and lesbians declared a suspect class in all 50 states and the territories, though this would do nothing for the repeal of the Federal marriage ban. Such a ruling would also take the wind out of any appeal. The pro-equality camp wouldn't want to appeal, since they won. The pro-bigotry camp would be in the position of either ceding California, or risking the U.S. Supreme Court agreeing with suspect classification on a nationwide level.
But, whatever happens, this is legal history in the making. And you'll be able to tell your grandchildren that you lived through the trial, even if you never heard a word about it.
The U.S. Supreme Court ruled a few days later that real-time dissemination of information from the trial would somehow harm the people seeking to uphold Prop 8, and so I haven't been able to follow the trial as closely as I would like. However, the American Foundation for Equal Rights, which brought the suit, is doing its best to keep the public informed in real-time on its site and via Twitter. (Historically, they've been a bit sluggish on getting information up on their own website -- even after it hits the media -- but hopefully this marks a new beginning and not a special effort during the hearings only.) There are also several law-savvy bloggers who have gotten seats in the gallery. My favorite (admittedly biased) one is the Prop 8 Trial Tracker, a project of the Courage Campaign Institute. Unfortunately, I have to base my conclusions on what I'm reading from non-professional and biased reporters, but I now think I have a sense of the legal strategy that's in play.
The approach the plaintiffs (that's the good guys in this case) seem to be taking is to challenge Prop 8 on a number of different fronts. They all boil down to the assertion that Prop 8 violates the 14th Amendment of the U.S. Constitution, which guarantees that everyone is an equal in the eyes of the law. (I'd love to see a 1st Amendment challenge as well, as limiting who may marry suppresses the rights of other religions to perform marriages they believe to be acceptable. But given the Court's general hostility to such challenges to polygamy laws, I can understand why no one has tried it.) However, the plaintiffs aren't taking only one strategy to do so.
You see, a law violates the 14th Amendment if it is targeted at a specific "suspect class" (that's legalese for "minority") and serves no "compelling state interest" (which is legalese for "unfortunate, but necessary given the serious nature of the threat we're facing"). A law also violates the 14th Amendment, no matter whose rights it affects, if it has "no rational basis" (which just means that the law is too stupid to be on the books).
The California Supreme Court (along with the supreme courts of Iowa and Connecticut) have declared gays and lesbians to be a suspect class. Thus far, the U.S. Supreme Court has not. The 14th Amendment challenges on LGBT issues that have succeeded there so far have all succeeded on "no rational basis" grounds.
To become a legal suspect class, the group in question must meet four criteria:
- The group must be definable. (i.e., "People affected by this law" is too vague. "People with blue eyes" or "people between 18 and 25 years of age" is specific enough for the law to determine if someone is part of that class or not without ambiguity.)
- The group must be defined by a characteristic that is unchangeable. Interestingly, religion -- which is very changeable -- meets this definition, as does age, which changes whether we want it to or not. Attempts to have obese people defined as a suspect class have historically failed on these grounds.
- The group must be subject to historical discrimination. In other words, WASPs can't be declared a suspect class, despite being a minority in many places, because historically they have not been the victims of discrimination in the U.S.
- To reach the level of suspect class, the group in question must also be politically powerless. (Women are not a suspect class in the U.S., for example. They are at a middle-level, between the "rational basis test" and the "strict scrutiny" required of laws affecting suspect classes. Women are subject to "intermediate scrutiny," because they meet parts 1-3, but there are enough of them to get laws changed on their own, without court intervention.)
So it shouldn't surprise anyone that the plaintiffs have presented expert witnesses on the history of discrimination against gays and lesbians and the immutability of sexual orientation. The "intervenors" (who are defending Prop 8 since the actual defendants -- that's the state of California -- agree that it's unconstitutional) in the case thus far have been predictably countering that homosexuality is a choice (which it isn't), that anti-gay laws don't target gays (which they do), and that gays and lesbians are an extremely politically powerful minority. (Connecticut's supreme court famously ruled that if gays and lesbians were not politically powerless, they would already have the right to marry. I can't say I can fault the logic.)
But the plaintiffs have not put all their eggs in the suspect-classification basket. The majority of their argument has been fighting the rational basis of Prop 8. Most of the experts called to testify so far have been taking the official reasons for passing Prop 8 to task. Prop 8 does not protect children, they argue. Prop 8 does not protect heterosexual marriage. Prop 8 does not promote family values. This approach is the more difficult one, because if even one argument for Prop 8 (including, historically speaking, one which the court can just make up on its own without it even having been argued) still stands at the end of the trial, then Prop 8 stands. Thus far, from what I've read, the experts have done an excellent job proving that each and every talking point is either invalid or just the opposite of reality. But this remains an uphill battle.
If Prop 8 is overturned on rational basis review, that's not the slam-dunk for equality that a suspect-classification ruling would be. It sets a good precedent, but then every same-sex marriage ban across the nation and at the Federal level would have to be individually challenged, with both sides arguing how their ban is similar to or different from Prop 8, and debating whether their state has a rational basis for such a ban.
Of course, there's also a third possibility, which no one seems to be discussing. You see, gays and lesbians are a suspect class in California. It would be entirely proper for the court to rule that since California recognizes gays and lesbians as a suspect class, California may not pass a law targeted at gays and lesbians unless the law passes the strict scrutiny test (i.e, the law serving a compelling state interest, being narrowly tailored, and minimally restrictive), which Prop 8 would not.
This would be a fascinating ruling, because it would be the court essentially dodging the nationwide question. The battle would then be on to get gays and lesbians declared a suspect class in all 50 states and the territories, though this would do nothing for the repeal of the Federal marriage ban. Such a ruling would also take the wind out of any appeal. The pro-equality camp wouldn't want to appeal, since they won. The pro-bigotry camp would be in the position of either ceding California, or risking the U.S. Supreme Court agreeing with suspect classification on a nationwide level.
But, whatever happens, this is legal history in the making. And you'll be able to tell your grandchildren that you lived through the trial, even if you never heard a word about it.