New Constitutional Test: Shotgun Scrutiny
Via Lachlan and Citizen Smash comes news that King County (Seattle) Superior Court Judge William Downing judge has just ruled in favor of gay marriage. No links to the decision itself appear to be available at this time.
Everyone, on both sides of the issue, take a deep breath. This ruling means nothing. Judge Downing’s ruling will be appealed. That was going to happen no matter how he appealed. Lower court rulings on questions of fact are entitled to great weight on appeal, which is why “I didn’t do it” makes a lousy basis for appeal. Not so for rulings on questions of law, which receive de novo review. The only difference that Judge Downing’s ruling will make is in determining what the case will be called when the Court of Appeal inevitably hears it. If he had ruled against gay marriage, the case on appeal would be called A Bunch of Gay Couples v. State. Since he ruled for them, the appeal will be called State v. A Bunch of Gay Couples, instead. That’s about it.
Sometimes, a very well written judicial opinion can influence the court of appeal indirectly. If the opinion is very well researched, footnoted, etc., it may come in very handy as an ersatz brief for the winning party. This does not appear, at first blush, to be such an opinion. Below is the portion the Seattle Times has cited:
The Court concludes that the exclusion of same-sex partners from civil marriage and the privileges attendant thereto is not rationally related to any legitimate or compelling state interest and is certainly not narrowly tailored toward such an interest.
Sounds pretty impressive and legal-ish, doesn’t it? Not to me. Some laws, namely those that impact fundamnetal constitutional rights like free speech or discriminate by race, are constitutional only if they are “narrowly tailored” to a “compelling” state interest.” Other laws, i.e., most others, probably including this one, are constitutional so long as they are “rationally related” to any “legitimate” state interest, which almost every law is. No law is to be tested according to whether it is “rationally related” to a “compelling state interest” or “narrowly tailored” to a “legitimate” state interest. So in effect, the judge applied four different tests at once, only one of which is appropriate under the circumstances, and only two of which even exist.
OK, so maybe the judge didn’t know which test to apply, so he thought he’d cover all the bases? Only he didn’t really do that, either. The above two tests are the most common levels of constitutional scrutiny, but they are not the only two. A third, intermediate category applies to laws alleged to discrimiate according to sex. That standard, which is appropriately dubbed “intermediate scrutiny,” requires that the law in question be “substantially related” to an “important” government interest. That test, which the judge appears to have completely missed, is the strictest standard that could plausbly be applied to gay marriage. Even that one’s a stretch, as it treats a “heterosexist” marriage law as discriminatory between the sexes rather than between sexual preferences. But at least that argument holds some water, in that the legality of any given person’s ability to marry depends on the sex of the other person. It has nothing whatsoever to do with race, the usual trigger for strict scrutiny.
It is possible, of course, that the full opinion, when released, will reveal a more coherent legal theory than this one snippet has thus far let on. [UPDATE: also via Lachlan, the decision is now available online.] At least, one can hope so. Gay marriage aside, I’d hate to think that anyone as legally illiterate as this guy sounds is on the bench. Stay tuned. [UPDATE: having skimmed the decision, it's clear that the judge does understand the difference, and was simply applying both tests at once to discuss alternate theories.]
UPDATE: This story, via Drudge, suggests that the entire suit may have been a sham.
King County Executive Ron Sims, a defendant in the lawsuit, said the ruling was a powerful affirmation of equal rights.
“I think marriage is an incredibly wonderful institution and that people who love each other should be allowed to be involved in it,” Sims said.
This is one of the guys who just “lost” this suit. He sure does sound broken up over it. So how did he end up on the opposite side of a court case with the gay marriage advocates whose cause he champions? Read on:
When first urged to issue marriage licenses to gay couples, Sims said he wouldn’t do it because the licenses wouldn’t have any legal meaning in a state that didn’t recognize him. But he invited the couples to sue.
[Emphasis added.]
Lovely.
August 4th, 2004 at 1:24 pm
I added a link to the actual decision, btw. And thanks for the nod!
August 4th, 2004 at 1:39 pm
Gay Marriage Legal in WA?
DENYING MARRIAGE LISCENSES to same-sex couples is a violation of their constitutional rights, a Seattle judge ruled Wednesday. “The denial…
August 4th, 2004 at 2:25 pm
It was pretty clear that he understood the distinction between the legitimate interest/compelling interest tests. What was odd was that he denied that homosexuals constitute a suspect class but *still* insisted that, because marriage is involved, a compelling state interest must be involved. I didn’t quite follow the logical jump there.
August 4th, 2004 at 2:52 pm
The judge didn’t actually rule under the 14th Amendment, but the entire opinion read as though he did, so let’s discuss it that way. Under the 14th Amendment, a law can be challenged either under the equal protection clause or under the due process clause, among others. Suspect classes are relevant to discrimination (equal protection) challenges, but not to substantive due process (liberty interest) ones. Thus, to the extent that the fundamental “right to marry” includes gay marriage, a law impacting that right will be subject to strict scrutiny on that basis, not on the grounds that it is (allegedly) discriminatory. Of course, if you really buy that logic, it must follow that ending marriage as a legal institution would also be unconstitutional, as it would deprive EVERYONE of their “fundamental right” to marry.
That said, you are right there is a weird leap in the judge’s ruling. Basically, he’s saying that on the one hand, discrmiinating against gays is no big deal, but on the other, a law restricting everyone’s right to marry members of his own sex, is. Go figure.
If this ruling sticks, it may raise all kinds of problems for other, less controversial restrictions on marriage. License fees, for example, discriminate against cheap bastards. Cheap bastards, like gays, are not a suspect class, and therefore would have a very difficult time mounting an equal protection challenge. But a substantive due process challenge? Why not? Ditto for incest, assuming one partner is either sterile or willing to become so. Add polygamy, and just about every other conceivable arrangement between consenting adults for which anyone might seek legal recognition. Since we’re relying on an amorphous “liberty” interest, where does it stop?
The more I think about it, this ruling is, potentially, much more dangerous than any rulings we’ve seen before. The equal protection slope is not nearly as slippery as the substantive due process one. The former can be stopped in its tracks by a court ruling that gays are a suspect class but polygamists are not. The latter does not depend on that distinction, only a colorable argument that whatever the plaintiff wants to do should be regarded as a marriage.
August 4th, 2004 at 4:13 pm
Hmm. I didn’t realize that there was a compelling state interest test for substantive due process claims. That raises another point, though: doesn’t virtually all law constitute, on some level, a restriction of liberty? Who decides which restrictions deprive you of LIBERTY and which don’t?
August 4th, 2004 at 4:28 pm
Courts. Freedom of political speech or free exercise of religion, for example, are “fundamental rights” under the First Amendment. So is freedom to marry, according to Loving v. Virginia. The trick is whether that freedom extends to “marriages” that deviate from marriage in the traditional sense. The Loving court says no, but this judge says yes.
Most other restrictions of liberty do not impact “fundamental rights,” and thus do not trigger heightened review. Suppose that Washington banned sodomy, and the same case had come before the same judge two years ago. Theoretically, he then should have ruled that gays have a right to marry, but no right to consummate the marriage.
August 4th, 2004 at 4:44 pm
Who needs democracy? (Imperial overlords edition)
A Robed Master has declared Washington’s prohibition on same-sex marriage a violation of the state constitution. In this opinion, Lord William Downing of King County Superior Court writes that it is the “sworn task of the courts” to uphold the…
August 5th, 2004 at 10:55 am
Not just Loving v. Virginia, I might add, but Meyer v. Nebraska, Turney v. Safley, and Zablocki v. Redhail. And there are a bunch of other Supreme Court cases that protect the right to personal associations.
August 5th, 2004 at 12:44 pm
A right to “personal associations” is a totally different issue. Personal associations other than marriage are not entitled to legal recognition.