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VOL. 8, NO. 10Aug. 23, 2006
Constitutional Law 101 — How to Protect Marriage
By Virginia Armstrong, Ph.D., National Chairman

"The prohibitions on homosexual marriage enacted by the states of Georgia, Nebraska, New York, and Washington are constitutional." Furthermore, "the states of Massachusetts and Tennessee may move forward with measures that would allow the voters to prohibit homosexual marriages in their states." These statements summarize the rulings of six different courts (five state and one federal) in a record month of pro-marriage victories — July 2006.

While the Georgia Supreme Court focused on procedural issues in its decision, the other three state protection-of-marriage laws were upheld "on the merits" — that is, on the grounds that they did not violate substantive provisions of state constitutions (New York's and Washington's top state courts) or the national Constitution (the federal Eighth Circuit Court of Appeals upholding Nebraska's law). Regardless of the details of these cases, the three courts based their decisions on very similar grounds. What were these grounds?

"The right of homosexuals to marry one another is not a fundamental right, nor are homosexuals a 'suspect class' under laws which forbid them to marry one another." So opined the July court decisions. And in the explosion of marriage cases around the nation, the two most vital, commonly debated constitutional issues of merit are the meaning and application of the Fifth and Fourteenth Amendments' due process guarantees of "liberty" and the Fourteenth Amendment's guarantee of "equal protection of the laws." Homosexual activists argue that bans on same-sex marriage violate these guarantees, while pro-marriage advocates deny any violation. The due process and equal protection standards are almost universally argued in all types of personal liberty cases, and the courts have fashioned a series of "standards" or "tests" to help judges decide these cases. Given the overwhelming importance of due process and equal protection jurisprudence, it is imperative that we Constitutionalists understand these judicially-contrived standards. Accordingly, Court Watch here offers its first in a series of "Constitutional Law 101" studies.

The Court-Created Tests

  1. The courts have ruled that there are three "levels of review" (i.e., standards) which are to be applied in due process liberty cases and equal protection cases. Each test assigns a different weight to the challenged government regulation. Which test a court chooses to apply in a particular case therefore is critical because it makes harder or easier the government's effort to defend its marriage protection measure.

  2. The first standard (and the original standard utilized by courts for many decades) is the "rational basis test." The second standard is the "heightened scrutiny/intermediate scrutiny test" (the most recently devised test). The third test is the "strict scrutiny test."

  3. The rational basis test is "extremely deferential" to the government regulation being challenged. This test merely requires that a law be reasonably related to a legitimate government interest. Therefore, governments attempting to protect traditional marriage passionately argue that this test is the one courts should use in same-sex marriage cases.

  4. On the other extreme, the strict scrutiny test is extremely difficult for a government regulation to pass. This standard requires that a law be "narrowly tailored" to "serve a compelling state interest." Homosexual activists argue passionately for court application of this test in their suits.

  5. The third test is the "heightened/intermediate scrutiny test." This standard requires that a government regulation be substantially related to an important government interest. As its name indicates, it is more deferential to governments than the strict scrutiny standards, but less deferential than the rational basis test. In recent cases, homosexual activist have resorted to arguing for court choice of this test when the court clearly refused to employ the strict scrutiny standard.

As is true of all "tests" found by courts consulting the crystal ball available only to judges, these tests create more questions than they answer. For example, which governmental interests are "compelling," which ones "important," and which ones merely "legitimate"? [Answer: whatever the courts decide.] Who makes these determinations? [Answer: judges] And how? [Answer: however judges choose.] These and other questions rip away some of the mystical curtain that seems to separate judges from all other Americans, and reveal part of the picture of how constitutional supremacy has been replaced by judicial supremacy in America.

Court-Specified Conditions for Applying the Tests

Since the courts have created these tests, they have also, as we might expect, specified the conditions under which each of the tests is to be applied. The conditions may be summarized as follows.

  1. The "strict scrutiny test" is applied when a law burdens a "fundamental right" (under the Due Process Clause) or involves a "suspect classification" (under the Equal Protection Clause).

  2. The "intermediate scrutiny test" is applied when a law classifies persons on the basis of gender or illegitimacy.

  3. The "rational basis test" is applied in all cases not covered by (1.) or (2.).

More questions are obviously created by these judicial "answers" to the previous questions. For example, what is a "fundamental right"? What is a "suspect classification"? Who decides and how? Many other questions also remain.

The Courts' Conclusions

In the Nebraska, New York, and Washington decisions, the courts found that the "rational basis test" was the appropriate standard of review. The three state laws were "reasonably related to a legitimate state interest" and were therefore valid under the "rational basis test." But what do these tests and the judicially-designed plan for their application mean in detail? Court Watch will address these questions in later "Court Watch Briefings."


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