You shouldn’t have to remind anyone that two weeks of testimony in the federal court case of Perry v. Schwarzenegger just concluded. Nor that the lawyers that opposed each other in Bush v. Gore have teamed up on the side of the gay and lesbian couples that brought the Prop. 8 case. (Talk about strange bedfellows.)
Nor even that the Prop. 8 case has its roots in the Marriage Cases (PDF). There, the California Supreme Court struck down a state law that forbade same-sex marriage. While dipping a chip into the guacamole, you should blithely observe, “Of course, that case was decided under California’s constitution, not the federal constitution.” Explain, if necessary, that the federal constitution establishes our minimum civil rights. A state constitution may go above and beyond that floor. The California Constitution does indeed protect some rights more than the U.S. Constitution. This may have affected the result in the Marriage Cases.
Especially if you know some guy who might be offended by the term, wait for the quiet following an insignificant incomplete pass to posit, “So, what’s a hateful homophobe to do? Change the state constitution, of course.” In November 2008, Californians approved Proposition 8, which amends the state constitution to read, “Only marriage between a man and a woman is valid or recognized in California.” This overturned the Marriage Cases.
The plaintiffs in the Prop. 8 case, to no one’s surprise, were refused marriage licenses pursuant to the newly amended state constitution. So they filed suit under the federal constitution. Specifically, they allege that California’s ban violates the Fourteenth Amendment’s due process and equal protection guarantees.
Here’s where your preparation pays off. Call out from the kitchen, “Anyone else need a brewsky? Of course, the court’s decision whether to apply strict scrutiny is awfully important.” Under the Due Process clause, a law restricting a “fundamental” right is subject to “strict scrutiny.” Under the equal protection clause, a law that discriminates against a “suspect” class, one that has historically suffered discrimination for what we now acknowledge to have been no good reason, is subject to “strict scrutiny.”
Under strict scrutiny, a discriminatory law survives only if it furthers a truly compelling public interest via the narrowest possible means. Few laws survive strict scrutiny. Under the lesser “rational” level of scrutiny, where the right at stake is not fundamental, or the classification is not suspect, a discriminatory law survives if there’s merely the off chance that it serves some half-plausible purpose.
“Few rights are more fundamental than the right to get married, right?” (Tailor any follow-up quips based upon whether the crowd is mostly single, first-timers, divorced, or mulligan spouses.) Plaintiffs argue that the right of consenting adults to marry is fundamental because it’s deeply rooted in our nation’s heritage, and substantive state interference just seems wrong. If the court agrees, then the ban probably is unconstitutional.
Prop. 8 proponents respond that, “until this decade marriage has always been limited to opposite-sex unions[.]” Thus, at least for same-sex couples, marriage was never a right, let alone a fundamental one. Waiving a weenie on a toothpick, exclaim, “What – like same-sex marriages haven’t gone on since ancient Greece and Rome, in parts of China, the Middle East, hell, throughout ancient European history?”
To invoke strict scrutiny for their equal protection claim, the plaintiffs point out that distinctions based upon same-sex attraction are impermissible because gays and lesbians are a suspect class. Explain that, in this context, “gays and lesbians are ‘suspect’ because they’ve always suffered discrimination and violence. Not only that, but homosexuality isn’t a voluntary choice, and gays and lesbians add every bit as much to society as straights.”
The proponents respond that being gay or lesbian is not hardwired, and they have plenty of political power (never mind that, as the recent mayoral election in Houston demonstrates, the election of a gay or lesbian candidate still makes national headlines for that reason alone). They argue that the plaintiffs “vastly overstate the significance of prior discrimination against gays and lesbians.” This is when the woman on the sofa who’s actually watching the game chimes in, “Two words: Matthew freakin’ Shepard.”
“Yeah,” you respond, “and gay kids commit suicide way more than straight kids because it’s FUN getting mocked, bullied and beat up.”
Here’s where you note that even if the plaintiffs’ claims are subjected to something less than strict scrutiny, the Prop. 8 proponents still should lose. “Absolutely nothing justifies the ban. Only an idiot believes we’re better off because of it, or worse off if it’s lifted.” Depending upon the quality and quantity of liquor consumed, someone may self-identify by asserting some version of, “It’ll destroy the institution of marriage,” or, “they can’t even procreate, that’s what marriage is all about.”
You’ll respond with some version of, “So the institution of marriage is strengthened by the completely unrestricted marital rights of rapists, adulterers, wife beaters, and convicted child molesters?” or, “Haven’t seen any bans on octogenarians or women with hysterectomies – you?” Now’s when the woman watching the game adds, “Ah for #^&*$’s sake, just how does someone else getting married affect your marriage? Explain that one, chump – after this third-and-goal.”
It’s your choice whether to point out that, no matter how well reasoned and factually based may be a decision striking down the ban, it has as good a chance of surviving the unabashedly agenda-driven, transparently activist, ultraconservative five-justice majority on the U.S. Supreme Court as, say, a bowl of salty cashews at a Super Bowl party.
Judge Vaughn Walker, who heard the case without a jury, will hear the attorneys’ final arguments this spring. His decision will issue some weeks or months after that.
Photo by Tom Andrews/LAist