Mike Kueber's Blog

February 17, 2012

Equal protection under the laws and same-sex marriage

The Ninth Circuit Court of Appeal, which has already earned enmity of every constitutional conservative in America, recently threw out California’s 2008 voter-approved ban on same-sex marriage (known as Proposition 8).  According to the court, this ban violated the equal-protection constitutional rights of gay men and lesbians in California.  

The U.S. Constitution under the post-Civil War 14th Amendment prohibits the states from denying “to any person within its jurisdiction the equal protection of the law.”  In accordance with longstanding jurisprudence, the Ninth Circuit accurately described as follows the legal standard for determining whether a law denies a person equal protection – “If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relationship to some legitimate end.

In the practical application of this standard, the courts scrutinize a law in three ways:

  1. Strict scrutiny.  Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is “narrowly tailored” to serve a “compelling” government interest. In addition, there cannot be a “less restrictive” alternative available to achieve that compelling interest.
  2. Intermediate scrutiny.  Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is “substantially related” to an “important” government interest.
  3. Rational-basis test.  Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is “reasonably related” to a “legitimate” government interest.

I’ve always been amazed when a court concedes that a law “neither burdens a fundamental right nor targets a suspect class,” yet concludes that the law is essentially irrational – i.e., it is not reasonably related to a legitimate government interest.  Why would a legislature act irrationally?  As Michele Bachmann would say, a court must have a lot of chutzpah to reach such a conclusion.  And the California case is even worse because the law was enacted by the voters through a proposition.  Thus, the Ninth Circuit is saying that the California voters acted irrationally.

It’s no wonder that Newt Gingrich has decided to demagogue the Ninth Circuit; it is an easy target.  But he neglects to consider that our system has a Supreme Court that has full authority to reverse outliers like the Ninth Circuit or Gingrich’s other so-called renegade jurist in San Antonio, Federal Judge Fred Biery.

Incidentally, Biery caught hell for refusing to allow a speaker at a local high school graduation say a prayer, and he was promptly reversed by the conservative 5th Circuit Court of Appeals.  Last week the litigants agreed to settle the matter, and Judge Biery issued an Opinion and Order that concluded with the following personal statement:


During the course of this litigation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients’ respective positions: Bless you.

Biery is fortunate that he can vent from the safety of a lifetime appointment.








  1. my position: people have a right to seek relationships. marriage is not a right, it is a legally defined privilege that affords numerous legal, health, social, and cultural advantages. i think it gives married people too many advantages that non-married people do not have. my conclusion is that we need to have a term for heterosexual relationships (marriage), a different term for homosexual relationships, and both should enable the same privileges.


    Comment by Q — February 18, 2012 @ 12:50 am | Reply

    • The problem with that position is that the courts might conclude that you are arguing for “separate, but equal” treatment. The courts didn’t allow that for black and white schools.

      Comment by Mike Kueber — February 18, 2012 @ 5:25 pm | Reply

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