Tuesday, December 16, 2008

Same-sex marriage backgrounder: Court will choose between two dueling standards for equality

Iowa Independent » Same-sex marriage backgrounder: Court will choose between two dueling standards for equality

By Chase Martyn 12/16/08 11:30 AM
The Iowa Supreme Court heard oral arguments a week ago today in Varnum v. Brien, a case that puts the state’s definition of marriage as between one man and one woman into question. At issue throughout the arguments was which standard the court should use to evaluate whether the Iowa statute that prevents same-sex couples from marrying violates the equal protection guarantees within the Iowa and federal constitutions.

On the eve of oral arguments, former Iowa Supreme Court Justice Mark McCormick told the Iowa Independent that there were two possible standards that the court could choose to apply to the statute: they could apply the “rational basis” test, or they could choose to apply “strict scrutiny.”

The two standards have evolved in federal case law as accepted interpretations of the “Equal Protection Clause” in the 14th Amendment to the U.S. Constitution. In cases like Varnum v. Brien where a plaintiff claims that a law violates his or her right to equal protection under the law, courts are generally restricted to using one of the two in their decisions.

Read on for some background on each standard and how they might apply to Iowa’s same-sex marriage case.

“Rational basis”

The rational basis test is generally considered to be the looser of the two available standards, which means that Iowa’s ban on same-sex marriage is more likely to be deemed constitutional if the court chooses to apply it rather than strict scrutiny. The standard essentially requires the court to answer the following question: is the law in question reasonably related to the achievement of a legitimate government interest?

If the Iowa court chooses to apply the rational basis test to Varnum v. Brien, they must decide (1) whether Iowa’s law defining marriage as between only one man and one woman serves to further a particular goal, and (2) whether the goal that the law helps to achieve is within the bounds of what government is supposed to do.

In federal case law, the most relevant application of the rational basis test in the context of gay rights is likely Romer v. Evans, which tested the constitutionality of an amendment to the Colorado state constitution that made it illegal for local governments to enact laws protecting homosexuals from discrimination on the basis of their sexual orientation.

Despite the Rehnquist court’s choice to apply the looser standard to the Colorado amendment, it was still struck down as unconstitutional. Justice Anthony Kennedy’s majority opinion said that the amendment’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

“Strict scrutiny”

The strict scrutiny standard is considered by some legal scholars to be “strict in theory, fatal in fact,” because when a court chooses to apply it to a law, the law in question is almost always struck down. (On the federal level, this claim is empirically questionable, but the statement still reflects the general perception of the difference between the two standards.)

The standard evolved from a footnote in the 1938 U.S. Supreme Court decision U.S. v. Carolene Products and is said to apply only to laws which affect or single out “suspect classifications,” or groups who have traditionally faced discrimination and lacked the political power to improve their circumstances alone. Laws must also be seen to involve “fundamental rights” to receive this heightened level of scrutiny.

Strict scrutiny includes the requirements embodied within the rational basis test and adds two more:

First, to pass strict scrutiny, a law must not only be reasonably related to a legitimate government interest, but it must be “narrowly tailored” to it. If the law is too broad and affects people in ways that do not achieve the legitimate government interest, or if the law is too narrow and fails to address essential elements embodied by the legitimate government interest, it is unconstitutional.

Second, the law must use the least restrictive means available to achieve the legitimate government interest. If there exists another solution to the problem at hand that would affect people less, the more restrictive solution is unconstitutional.

The extent to which a law must be explicitly targeted at a suspect class in order for it to receive strict scrutiny remains somewhat ambiguous in federal case law, but a law could receive strict scrutiny even if it does not refer to a suspect class, so long as there is evidence that it was intended to affect a suspect class when it was written.

Applying the two standards in Varnum v. Brien

In last week’s oral arguments, Assistant Polk County Attorney Roger Kuhle argued that the court should apply the more lenient rational basis test to Iowa’s definition of marriage. He argued that the current law was not intended to be discriminatory against homosexuals, because it makes no explicit mention of them and served only to reinforce a law that was already on the books when it was passed in 1998.

While Kuhle conceded that marriage should be considered a fundamental right, he said that it was a right to join only opposite-sex unions, because that is how marriage should be defined. If the court chose to define the right differently, he argued, it would be presuming a new definition of marriage (as something other than between one man and one woman) before deliberations even began.

Kuhle also argued that ‘homosexual’ is not a suspect classification and should therefore not trigger the requirements of strict scrutiny. Sexual orientation, he said, is different from other classifications like race and gender.

To satisfy the rational basis test, Kuhle focused on what he claimed was the government’s legitimate interest in providing an optimal environment for raising children. Opposite-sex couples, he argued, make for the best conditions for raising children, and Iowa’s law restricting marriage to those couples bears a rational relationship to the legitimate government interest.

Arguing for the plaintiffs, Dennis Johnson asked the court to apply strict scrutiny to Iowa’s marriage law. Sexual orientation should be considered a suspect classification, he argued, and Iowa’s definition of marriage was passed with the clear intent to exclude same-sex couples.

Both sides agreed that marriage should be considered a “fundamental right,” but they disagreed about how that right (or “constellation of rights”) should be defined. This definitional disagreement could be the deciding factor in which standard the court chooses to apply.

But Johnson also asserted that Iowa’s marriage law would not even satisfy the looser requirements of the rational basis test, should the court choose to apply it. He disputed Kuhle’s claims that same-sex couples are inferior at raising children. Both sides have provided evidence to support their arguments already, so they did not dwell on this point Tuesday.

Johnson also argued that the government’s interest in providing an optimal environment for raising children was not well served by a law preventing same-sex couples with children from achieving the stability and validation embodied in marriage. Even if opposite-sex couples are better at raising children, he argued, same-sex couples have raised children in Iowa and they will continue to do so, with or without the right to marry. If that is true, then the government’s interest in raising children in an optimal environment would be best served by allowing same-sex parents to marry.

If the court chooses to apply strict scrutiny to Iowa’s law defining marriage as a union of one man and one woman, it is likely to uphold the trial court’s decision to effectively legalize same-sex marriage. As Kuhle pointed out, the court would have already decided on a new definition of the right to marry if they concluded that the more stringent standard was appropriate.

But if the court applies the rational basis test, they could still side with the plaintiffs. The Massachusetts Supreme Court applied that standard, and they still concluded that same-sex couples should have the right to marry. Polk County Judge Robert Hanson chose to apply strict scrutiny, but his ruling also concludes that Iowa’s ban on same-sex marriage would violate the rational basis test. Should the court reverse Hanson’s decision to apply strict scrutiny, they might still side with him when applying the looser standard.

A caveat

There exists a third standard called “intermediate scrutiny” that would fall between strict scrutiny and rational basis review in terms of strictness. It is similar to strict scrutiny, but rather than requiring that a law be “narrowly tailored” to a legitimate government interest, it must only be “substantially related” to the interest. This standard has been applied to cases of sex discrimination, but in those cases, some analysts have argued, intermediate scrutiny has become almost as strict as strict scrutiny.

Intermediate scrutiny has received less attention than the other two standards in Varnum v. Brien, but it is possible that the Iowa Supreme Court could choose to apply it anyway

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