One hears all sorts of absurdities and points and positions pertaining to the same-sex marriage issue, and it is important to sweep away prejudices and to look solely at the constitutional points. The first thing which should give one pause, if he has any sort of familiarity with the views of the Framers of the Constitution, is that “the judges are stealing the will of the majority” types of arguments are constitutional hokum. The Framers set up a constitutional, representative democracy just so pure majority will would not carry the day; so that majorities could not tyrannize or oppress minorities, and the vehicle for preventing such was the proper application of constitutional law by judges. Quite bluntly, the Framers did not trust majorities!
Judicial review did not grow from latter-day “activist judges” working some tyrannical, evil, oligarchical will to strip the majority of their right to govern; instead it is part of the discussion of the Framers when designing the judicial branch, and it is discussed most helpfully in Federalist 78: the judges were expected to “void” laws that violate the Constitution.
The process of judicial review involves a judge laying a challenged enactment beside the Constitution and deciding if, and how tightly, it fits. And that is what happened with Proposition 8, the anti-same sex marriage state constitutional amendment. Apart from the wisdom of amending the constitution by popular plebiscite [idiotic notion], the substance itself, laid next to the Constitution, spilled outside of the boundaries of the Due Process Clause and the Equal Protection Clause of the 14th Amendment, and hence it is void.
Before one takes issue with that observation, one should read the 136 pages of the ruling, and most negative critics have not. Indeed, most negative critics know little about the Constitution – they are generally driven by emotion, sprinkled with banal and superficial spoutings about Christology. It should be noted that the KKK burns a “Christian” cross to make their point and they pretend the Bible supports their perverse prejudices, and most Christological opponents of same-sex marriage are quite indistinguishable from the KKK in that regard. It should be noted that Christ, who brought to Earth a New Covenant, eliminating some of the harshness of the Old Testament standards and preaching “love they neighbor,” never said anything against gays or gay marriage; He said much, however, against divorce and adultery!
Here, the institution of marriage is deemed [by cases long before this one] to involve a fundamental right, which is in the realm of substantive due process of the 14th [and 5th] Amendment. Moreover, treating similarly situated people differently implicates equal protection values of the 14th Amendment. If government wants to invade the fundamental rights arena, there must be strict scrutiny of the measure. The burden is on government, where strict scrutiny is the standard, and the government must show that there is a compelling state interest, and that the measure is narrowly tailored to address that interest, and it must have involved the least restrictive means to address that interest.
So, as some of the absurdists pose, prohibiting marriage to a dog or one’s sister or to more than one spouse could easily pass the strict scrutiny test and the measure would be illegal. But one cannot say the same of same-sex marriage, and that is largely because the proponents of the prejudiced position did not carry the burden that there is a compelling interest in illegalizing same-sex marriage – they failed in the factual showing, they failed the strict scrutiny test, which generally dooms constitutional litigation.
Then, we recall from famous footnote 4 of Carolene Products, that government action that singles out for negative treatment discrete and insular minorities triggers equal protection analysis. That analysis can run on one of three tracks, the strict scrutiny track, the intermediate scrutiny track or the rational basis track. On the rational basis track, the least restrictive, the burden is on the side attacking the measure to show that the measure is not rationally related to a legitimate governmental interest. Here, the opponents, marshaling impressive authorities, revealed that factually, and with an historical context that might have evolved away, there was not even a rational basis supporting Prop. 8; the court did not need to entertain strict or intermediate scrutiny analysis, because factually the measure failed on any track.
One of the critical equal protection issues here is that if George wants to marry Fred; he cannot: he must be Georgina to do so. Yet George and Georgina are of equal rights in all other pertinent respects. Nothing lucid in the law can treat George and Georgina differently, especially when the subject is a fundamental right.
It is interesting that the same pro-Prop. 8 sorts who lament the death of majority rule they think is represented by the injunction against the measure are the same sorts who were gleefully celebrating the two Second Amendment cases that threw out anti-gun legislation, which was also installed by a “majority,” and they were likewise thrilled by the Virginia federal court attack on “obamacare” from three weeks ago, likewise installed by a “majority.” Their biased skirts are showing with those expressed inconsistencies.
Judge Walker’s observation, when he refused to issue a stay pending appeal, that the intervenors have no standing to press the appeal [which I proclaimed on the air a week before he and the pundits mentioned it!] will, I think, carry the day. Intervenors, who are really officious intermeddlers in others’ affrays, are like lampreys on the belly of the shark: they travel so long as the shark swims, but when the shark stops, they have to stop too. Intervenors have no independent stake in this case, and if the court of appeals is faithful to Article III standards, it will dismiss the appeal. Of course, I never presume that Courts will be faithful to the Constitution nor to the law, but hope remains eternal.