In that post didn't comment much on the third paper given by Rob McFarland from the Jones School of Law at Faulkner University. Rob's paper focused on the legal issues that have been swirling around gay marriage in recent years. In this post I want to highlight Rob's paper in light of the decision last week from the 9th Circuit Court of Appeals in the case Smithkline Beecham Corp. v. Abbott Laboratories.
Rob's paper at the CSC was enlightening for many of us in attendance. Basically, Rob educated us on the legal basis that had been used in court cases where plaintiffs were seeking legal recognition for same-sex marriages. Many of us, Rob pointed out, had been misunderstanding these cases. But things just might have changed with the 9th Circuit ruling last week.
Specifically, many in the public (me included) had been assuming that the cases regarding same-sex marriage, cases like Windsor v. U.S. which triggered a wave of rulings over the last year striking down same-sex marriage bans in various states, had been based upon Constitutional protections for certain classes of citizens. Similar to the way discrimination is prohibited in the case of gender or race.
To understand this we need to describe the two different ways the government might address discrimination. Legislatively, the government might pass an anti-discrimination law creating a "protected class." Such laws protect certain persons from particular forms of discrimination. The most sweeping and significant example of this in modern times is the 1964 Civil Rights Act which outlawed discrimination based on race, color, religion, sex, or national origin.
Consider job discrimination against gay or transgendered persons. Currently, in 29 states across the US you can fire someone on the basis of sexual or gender orientation. In most states it remains perfectly legal to fire someone simply because of sexual or gender orientation. Consequently, across much of the US gay and transgendered persons must remain closeted in the workplace.
However, the US Senate has tried to fix this problem. Last year the Senate passed the Employment Non-Discrimination Act which prohibits discrimination in hiring and employment on the basis of sexual orientation or gender identity.
However, the Employment Non-Discrimination Act has died in the House.
That's how legislatures address discrimination, by passing laws to protect classes of people from certain forms of discrimination. But the courts don't pass laws. Courts interpret existing laws in light of the Constitution. And when it comes to discrimination courts have to evaluate if a particular law violates the Equal Protection Clause of the 14th Amendment that no state shall deny to any person within its jurisdiction "the equal protection of the laws."
But while the courts don't pass laws creating "protected classes" they do something similar, what is called "levels of scrutiny."
Simplifying greatly, you can think of levels of scrutiny as raising the legal bar you have to clear before the government can discriminate against someone.
The lowest bar the government (federal, state, or local) has to clear to discriminate is called rational basis review. Under this level of scrutiny if the government has any "rational basis" for discriminating then the law is deemed constitutional. That sounds bad, but the government has to discriminate against all sorts of people. For example, six year olds aren't allowed to drive. But given that the government has a "rational basis" for restricting six year olds from driving this law doesn't violate the Equal Protection Clause. Under rational basis review all the government has to show is that it has a good reason--a "rational basis"--for the discrimination involved in the law. And under rational basis review the government is given the benefit of the doubt. The burden of proof is on the plaintiff.
Above rational basis review is what is called "heightened scrutiny" or "intermediate scrutiny." The stakes are raised here. The government has to have more than a "rational basis"--a good reason--for discrimination under "heightened scrutiny." You have to show that the discrimination serves an important government objective. Plus, unlike in rational basis review, under heightened scrutiny the burden of proof shifts toward the government. The court adopts a more skeptical and critical posture toward the discriminating law.
From a judiciary perspective the critical posture of the court used in heightened scrutiny is a form of protection toward certain classes. Heightened scrutiny is used in cases involving gender or racial discrimination.
Summarizing, while the courts don't create protected classes they do recognize classes of persons who, when they face government discrimination, get special judicial attention and protections. Specifically, the bar gets raised. If the government wants to discriminate, say, on the basis of gender or race, the reasons for the discrimination have to be much compelling along with being directly related to the functions of government. Plus, the burden of proof shifts to the government to makes this case.
As Rob described in his CSC paper, most of us following the same-sex marriage courts cases had been assuming that the courts had been extending this "heightened scrutiny" to same-sex persons. That is, we had been assuming that same-sex persons were being given the special protections used by the courts when they address cases involving gender and racial discrimination.
But as Rob pointed out, that's not what has been going on. Most of the same-sex marriage cases in the wake of Windsor were being decided under rational basis review. As Rob pointed out, the courts have been very wary of applying heightened scrutiny to same-sex discrimination cases as that would bring sexual orientation into the same protected space as gender and race.
According to Rob, the reason the courts have been reluctant to do this is that there remains some debate as to whether sexual orientation is analogous to biological classes such as gender and race. Consequently, when the courts have examined same-sex marriage they have tended to focus less on biology than upon liberty. Specifically, the courts have tended to frame the issues in same-sex marriage as less a violation less of the 14th Amendment than of the 5th Amendment. The 5th Amendment speaks to governmental interference in the exercise of liberty. And while both the 14th and 5th Amendments are relevant, courts have tended to see same-sex marriage bans as governmental interference in the pursuit of liberty, in this case the liberty to marry the person you love. And using rational basis review many courts have decided, following Windsor, that the government has no "rational basis" for interfering in this way. Same-sex couples should be able to engage in the "pursuit of happiness" without governmental interference.
The good news about applying rational basis review and focusing on liberty is that, since Windsor, many courts have argued that the state can't even meet this lowest level of scrutiny. The state can't even clear the lowest bar. That is, after Windsor many courts have decided that the state cannot articulate a coherent reason beyond prejudice--provide a simple "rational basis"--for interfering with the liberty of same-sex couples who want to marry.
That's heartening to see for same-sex marriage advocates. And it has lead to many state marriage bans being struck down since Windsor. But the downside is this. The trend of keeping these cases at the level of rational basis review means that courts in some states will continue to conclude that a particular state does have a "rational basis" for discrimination, for example, the protection of traditional marriage.
Recall, at the level of rational basis review the government's reason doesn't have to be all that strong or compelling. The bar for what counts as "reasonable" isn't all that high. The skepticism is directed at the plaintiff, not at the government. True, many courts, as we've just noted, don't think the state can even meet this low threshold, but other courts disagree. Again, this not a very high a bar to clear. Consequently, if the trend of rational review holds same-sex marriage bans could persist for a very long time across much of the US.
But if things were to kick up to "heightened scrutiny" review that would be a whole new ballgame. The burden would shift to the state to make a much more compelling case, one that must show a direct governmental interest. Under "heightened scrutiny" sexual orientation would get the same judicial protections as gender and race. But to date, this hasn't happened.
Until last week's ruling by the 9th Circuit.
To understand what happened with the 9th Circuit we need to revisit Windsor. The ruling in Windsor was vague about which level of scrutiny was being used. Was it rational basis or heightened scrutiny? Or both? It was unclear. But as we've noted, the decisions that followed Windsor have tended to assume that Windsor used rational basis review, arguing that states have no "rational basis" for infringing upon the liberty of same-sex couples wanting to marry.
But that understanding of Windsor is a matter of interpretation. You could argue that, beyond the issues related to the infringement upon liberty, that Windsor was protecting a socially despised group from targeted acts discrimination. If so, heightened scrutiny should be applied.
Before last week's ruling by the 9th Court no court had read Windsor as creating that sort of precedent. Rulings since Windsor, as we've noted, have tended to stay away from discussing targeted acts of social discrimination against same-sex persons in American society and have, rather, focused upon governmental infringement upon liberty. But last week's ruling by the 9th Circuit took a different approach and argued that Windsor actually had set the precedent for "heightened scrutiny" in cases where same-sex persons are being discriminated against. That is to say, when it comes to same-sex persons the issue isn't just about the exercise of liberty, it is also about protecting a particular class of people from targeted acts of discrimination. And this use of Windsor by the 9th Circuit, as setting the precedent for heightened scrutiny in cases of same-sex discrimination, is potentially a game-changer.
Interestingly, Smithkline Beecham Corp. v. Abbott Laboratories, the case decided by the 9th Circuit, has nothing to do with gay rights. The case was an antitrust suit between two pharmaceutical companies with one company accusing the other of price-gouging HIV medications. During the jury selection process a potential member of the jury was excluded by Abbott because he was suspected of being gay. After the verdict the losing company appealed citing, among a list of things, that Abbott violated protections about improperly discriminating against certain classes of people in jury selection. Basically, as you know, you can't discriminate in jury selection based upon things like gender or race. And according to the company filing the appeal you shouldn't be able to kick someone off a jury because they are gay.
And the 9th Circuit agreed. And they agreed by citing Windsor in a new way. Specifically, unlike other courts which took Windsor to be using a rational basis review, the 9th Circuit read Windsor as setting the precedent for applying heightened scrutiny to cases where same-sex persons are being discriminated against. This effectively includes same-sex persons, in the eyes of the court, among other classes, such as gender and race, that deserve special attention and protection under the law because they are targets of ongoing social discrimination in American society.
The reason this is significant is that if the ruling of 9th Circuit is upheld it sets the precedent for applying heightened scrutiny to cases of same-sex discrimination. This is what many had assumed was happening as various marriages bans were being struck down since Windsor, that same-sex persons were being specially protected by the courts from ongoing social discrimination. But that's not what was happening. But with the 9th Court's ruling, that may now start becoming the case.
And if it does, if heightened scrutiny is applied across the courts, it will be very difficult to uphold marriage bans even in states where bans remain because the courts currently deem the government as having a "rational basis" for such bans. The introduction of heightened scrutiny as a precedent might radically change the game even in the most conservative of states.