\nFor those who are following the upcoming same-sex marriage Supreme Court case, Dale Carpenter has a very interesting discussion over at the Volokh Conspiracy. Like most observers (myself included), Carpenter thinks that the court's decision to hear the case indicates a strong chance that it's going to vote yes on marriage. But the question of how<\/i> they say yes may prove even more important, because that's what's going to determine the way many other laws and cases in the future are decided. Carpenter walks through four possible rationales that a yes decision might follow, and the consequences each would have.<\/p>\n
My own Supreme Court Tea-Leaf Reading (an arcane art practiced by people with too much time on their hands) (we should totally have a Fantasy Supreme Court League) leads me to expect a 6-3 "yes" decision on the marriage question, with Roberts writing the majority opinion and Scalia writing a dissent for himself, Alito, and Thomas; and on the question of inter-state recognition of marriage, anything from 6-3 (split the same way) to 9-0, although Scalia would almost certainly write a concurring opinion even if he were in the majority. But as far as which rationale they pick, I don't think I have a good instinct at all right now.<\/p>\n
I would personally favor the first rationale that Carpenter proposes: that sexual orientation be subject to intermediate scrutiny. There are three kinds of review that a court can give a law: rational basis review, where the government need only show that the law has a rational relationship to a government interest; intermediate scrutiny, where the government has to show that it furthers an important<\/i> government interest in a way substantially related to that interest; and strict scrutiny, where the government has to show that it is justified by a compelling government interest; that the law or policy is narrowly tailored to achieve that interest; and that it is the least restrictive means to achieve that purpose. Strict scrutiny applies, for example, when a fundamental Constitutional right is at stake, e.g. if the government wanted to restrict religious practice or free speech. More relevantly, when a government action applies to a "suspect classification" such as race, that triggers strict scrutiny as well. Gender triggers intermediate scrutiny. So far, sexual orientation has not been marked as a protected class, except implicitly by some prior decisions. (e.g. Romer v. Evans,<\/i> which struck down a state constitutional amendment which would have banned any protection based on sexual orientation) However, this hasn't been an issue in any of the gay marriage cases so far, because in each case the judges simply said "we're not sure which review is right, but we note that this law completely fails even a rational-basis review, so I guess that's that." (If you've never read the original court decision in Perry v. Schwarzenegger,<\/i> the California case which sort of acted as the template for these, it's worth a read to see what happens when a judge gets really annoyed at one side for not even pretending<\/i> to come up with a good explanation for their actions) Applying intermediate scrutiny to sexual orientation would cut directly to the heart of all of the issues in this case and others, and would give other courts a simple rule which they could use to resolve such disputes.<\/p>\n
That's on the positive side; as Carpenter notes, the Court may be actively in search of a decision which doesn't<\/i> give too much future precedent. That's a favorite approach of the Supreme Court in general, since they're (justifiably) leery of just how much power a precedent can have and want to make things as narrow as they can. But on the other hand, they know that if they give a narrow ruling in this case, they're going to get more and more related cases every few months for a very long time to come, and some of them aren't going to be ones they can simply punt. So that may be an incentive for them to simply deal with the issue once and for all.<\/p>\n
We'll have to see what happens. The most important thing to remember is this: What's important in this case isn't simply the decision — it's the details of the rationale. That's what's going to shape everything that happens down the line.<\/p>\n
Thanks to +<\/span>Anne-Marie Clark<\/a><\/span> for finding this.<\/p><\/blockquote>\n
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\nA pre-decision guide to a post-decision world of same-sex marriage<\/a><\/span>
\nAfter they have the right to marry, will gay people have any other rights when states discriminate against them? Here’s your pre-decision guide to a post-decision world.\n<\/p><\/blockquote>\nView on Google+<\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
