Heightened scrutiny

By Mustang Bobby

As you may have heard, last week the Obama administration filed an amicus brief in the Supreme Court case against Prop 8. Greg Sargent explained why this is a big deal:

The key to the brief is that it makes two arguments. The first is that it agrees with the ruling of a lower court — which found Prop 8 unconstitutional — that challenges to the constitutionality of such laws should require that they are subjected to "heightened scrutiny." That means the court should hold their rationale for discriminating to an extremely high standard, and strike them down if they fail to have a credible justification. The brief does that here, in a reference to previous Supreme Court ruling in cases involving challenges to discriminatory laws:

[C]lassifications based on sexual orientation call for application of heightened scrutiny. Each of the four considerations identified by this Court supports that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people — as Proposition 8 itself underscores — are a minority group with limited power to protect themselves from adverse outcomes in the political process. [...]

Because a classification based on sexual orientation calls for the application of heightened scrutiny, petitioners must establish that Proposition 8, at a minimum, is "substantially related to an important governmental objective."

The second key to the brief is that it argues that when you apply "heightened scrutiny" to Prop 8, it is found to violate the equal protection clause of the U.S. Constitution.

What this means is that the government, while focusing its brief on Prop 8 itself, has, for all practical purposes, asked the Supreme Court to set a precedent that can be applied to all state laws banning gay marriage — the arguments that these laws must survive "heightened scrutiny," and that they violate the Constitution.

If the Supreme Court strikes down Prop 8 based on the heightened scrutiny argument, then it could invalidate all the laws in the country that ban marriage equality, much in the same way that Brown v. Board of Education invalidated school segregation in places other than Topeka, Kansas. It would set a precedent for overturning other laws that discriminate against members of the LGBT community, such as the adoption restrictions in Florida, already pretty much ruled unconstitutional by lower courts.

What's been sardonically laughable are the arguments the pro-Prop 8 crowd are making in favor of keeping Prop 8 in place. They run the gamut of the usual frets: we're headed for the slippery slope to polygamy and people marrying dogs (which means they don't understand the basics of contract law); it violates the First Amendment guarantee of religious freedom to be bigoted assholes (which means they don't get the part where no one is forcing the churches to marry everyone); to the best argument of all: gays and lesbians are really a very powerful political force, they have lots of money (and nice clothes), and they're not the ones who are discriminated against; we, the poor picked-on Christians who make a living gay-bashing, are the true victims here. Seriously.

The Supreme Court has the historic chance to live up to the simple idea that all people are entitled to equal rights under the law. Whether or not you tie it up with terms like "heightened scrutiny" or just the simple fact that denying one group of people the same rights as everyone else ends up denying everyone their rights, it is not a hard choice to make. It doesn't matter if it comes down to an interpretation of the Constitution or a vote by the one member of the Court who does not want to go down in history as the person who stood in the way of inevitable human progress. History will be watching.

Now that's heightened scrutiny. 

(Cross-posted at Bark Bark Woof Woof.)