By Mike Dorf
Understandably, most of the news coverage of Perry v. Schwarzenegger has focused on the bottom line: A court found a constitutional right to same-sex marriage. But some of the coverage that has gone deeper has managed to convey a half-truth: The notion that Judge Walker declined to reach the question of what level of scrutiny applies to laws denying same-sex couples the right to marry. (I don't have quotations or citations handy but I've seen this line.) That's a half-truth because while Judge Walker said that Prop 8 flunks rational basis review, he also made clear that it needs to pass something more like strict scrutiny--both because marriage is a fundamental right and because Judge Walker finds all the prerequisites for the conclusion that sexual orientation is a suspect classification. I make the latter point in my column. Here I'll add two observations.
First, Perry was a somewhat unusual case in that the gay-rights plaintiffs actually asked for strict scrutiny. For many years, the litigation strategy of the gay rights movement was to argue that the courts didn't need to reach the question of what level of scrutiny applies because the challenged laws failed rational basis review. This was a winning strategy in both Romer v. Evans and Lawrence v. Texas, neither of which expressly applied heightened scrutiny, but neither of which exactly applied conventional rational basis scrutiny either. But why didn't gay rights lawyers argue in the alternative that: a) heightened scrutiny should apply (under either due process or equal protection or both, depending on the nature of the case; but that b) even if mere rational basis scrutiny applied, the challenged law or policy failed? My sense--based on numerous conversations with movement lawyers over the years--was that making argument a) was deemed too risky. If we got to the Supreme Court with a heightened scrutiny claim too soon, the logic went, we could blow the whole thing. I also think this approach was partly based on the calculation that Bowers v. Hardwick was inconsistent with heightened scrutiny--although that notion should have been dispelled by 1996, when the Court decided Romer. It was clear then that the Court would not treat Hardwick as much of an obstacle to reaching what it deemed a just result in a discrimination case. In my column, I noted my sense that the mainstream gay rights organizations were a bit miffed that Ted Olson and David Boies filed without prior approval. That miffedness may have also extended to the fact that Olson and Boies argued for heightened scrutiny, but if so, it seems misplaced. If there was ever a good reason to rely solely on rational basis scrutiny, there no longer is--certainly not with respect to marriage, where the fundamental rights argument is quite strong.
Second, I think it's somewhat unfortunate that Judge Walker relied on rational basis scrutiny to invalidate Prop 8. It's one thing to say that a majority of the voters in a state voted for a law that can't withstand rigorous judicial scrutiny. It's quite another to say that they voted for a law that was completely irrational. Traditional rational basis scrutiny is incredibly deferential to asserted state interests. Is there a rational basis for banning same-sex marriage? If I were trying to defend Prop 8 (a job which I don't want and won't be offered), I think I'd say something like this: The law serves to maintain a traditional line for fear of starting down a slippery slope to official state recognition of polygamy and other relationships (such as two or more Platonic friends who want to be "married"). Is that a good basis for denying a right to same-sex marriage? I think not, but is it completely irrational? Laws have passed traditional rational basis scrutiny even if they were based on demonstrably false assumptions, so long as those assumptions could have been true. And it could be true that same-sex marriage will lead to polygamy in the sense that such a state of the world would not violate any of the rules of logic or the known laws of science. So, I think Prop 8 probably should survive rational basis scrutiny, and it's unfortunate that Judge Walker's opinion will, for the time being anyway, cast the issue as whether the supporters of Prop 8 are irrational morons or lunatics.
It should be enough to say that Prop 8 violates the basic civil rights of LGBT Californians. That broader holding could be readily defended without the need to insult Prop 8's supporters. Thus, we have a case in which an attempt at minimalism--here only applying rational basis review--backfires. (In case there's any doubt, I say all of this as a longstanding proponent of full marriage equality and as someone who thinks that Judge Walker decided the merits correctly.)