Breaking news from SCOTUS Blog :

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

The DOMA case, known as Windsor , will turn in part on questions of equal protection:
In Windsor, the government petition (12-307) is the one granted. In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

Matthew J. Franck wrote on our site yesterday on how same-sex marriage’s political victories throw into doubt the idea that laws restricting marriage to a man and a woman should be subject to heightened scrutiny under the equal protection clause :
Modern courts have muddled through by developing three different “levels of scrutiny” for equal protection analysis, from most to least stringent: strict scrutiny, intermediate (or “heightened” scrutiny), and rational basis review [ . . . ]

Those who seek to overturn traditional marriage laws have tried to persuade courts to treat homosexuals as a suspect or quasi-suspect class, thus leveraging the legal analysis into one of the harder levels of scrutiny, or at least an “intensified” rational basis review, and improving their chances of victory. Two recent decisions by federal district court judges in the Ninth Circuit—one in Hawaii by Judge Alan Kay on August 8, the other in Nevada by Judge Robert Jones on November 26—have rejected this gambit, rightly holding that laws restricting marriage to one man and one woman need only be shown to have an ordinary rational basis, that this is easily shown, and that they involve no invidious discrimination.


Franck cites one of the rulings, in which a judge scoffs at the notion that homosexual persons lack the “ability to attract the attention of lawmakers”:
The question of “powerlessness” under an equal protection analysis requires that the group’s chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces . . . . The relevant consideration is the group’s “ability to attract the attention of the lawmakers,” an ability homosexuals cannot seriously be said not to possess.

Franck concludes: “It is ludicrous to call gays and lesbians an oppressed and powerless minority in the United States at the end of 2012. This fact should weigh heavily in the Supreme Court’s deliberations.”

Will gay marriage’s success at the ballot box hobble its case before the court?

Articles by Matthew Schmitz

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