Why It Is Important And How It Applies to The Current Debates Concerning Gay Marriage and Healthcare Reform – Part 1

Let me start out by saying that this article does not take a position pro or con on the issues of gay marriage or federally mandated healthcare reform. Rather, the purpose of this article is to address what I perceive as a major gap in the way some people reason while engaging in the current debates. That gap has resulted, I believe, from a lack of understanding of the role legal precedent plays in interpreting Constitutional provisions and applying them to current legal disputes. In other words, It is one thing to desire a particular legal outcome: the right for gays to marry for example, which will be the subject of Part 1 of this article. However, to get there, one must be familiar with the due process and equal protection clauses, how they have been interpreted in the past by the Courts and how the Court’s holdings would need to be extended in order to get to that result: in other words, the role of legal precedent.

Our system of justice was born out of the English common-law system. Put very simply, this means that the courts will be presented with a case or controversy. The Court will issue its holding after applying the law in question to the particular facts of the case. That holding becomes legal precedent for how a future court will rule assuming the same or similar facts under the same law. This is called the doctrine of stare decisis ( let the decision stand). In order for a Court to extend a legal precedent to later cases before it that do not involve the same facts or issues, it must determine that the case before it, while not factually identical, involves parallel issues or is otherwise analogous in some way to the facts presented in a previous case(s) on which the court intends to rely.

An example of this presents itself in examining how the controversial ruling in Roe v. Wade (the Constitutional right to abortion) came to be. A few years before Roe was decided, the U.S Supreme Court struck down a Connecticut law which banned the use of birth control devices. That case was Griswold v. Connecticut, which was decided upon the (also controversial) right to “privacy,” which although not explicit in the U.S Constitution, the Court found to be implied by the 4th and 5th amendments. Roe v. Wade obviously went beyond Griswold, in that now the Court was not dealing with the right to procreate, but the right to terminate a pregnancy after conception. The Court used the same analysis as it did in Griswold, and extended the right to privacy to include the right to abortion.

It is anticipated that, regardless of how the current federal gay marriage trial ends, the matter will be appealed all the way up to the U.S Supreme Court which will have to use legal precedent to reach its decision, assuming it agrees to hear the case.

The main argument on the pro-gay marriage side would be that forbidding individuals to marry the person of his/her choice regardless of gender violates either the due process or the equal protection clause of the US Constitution. It is settled law under due process jurisprudence currently that one has the right to marry someone regardless of race. The Court would need to be convinced that sexual orientation is analogous to race, and thus, the legal precedent should be extended under due process analysis.

As for equal protection analysis, we all know that laws do in fact discriminate. For example, all states have age restrictions on voting and on buying alcohol. The test of whether a law violates the equal protection clause depends upon either the right involved or the class of persons it burdens. The Courts will apply one of three levels of scrutiny to the challenged law to determine whether the equal protection clause has been violated: Strict scrutiny, intermediate scrutiny or minimum scrutiny.

Strict scrutiny of the law will be employed if the Court determines that the law burdens a fundamental right OR involves a suspect classification. If strict scrutiny applies, the state government must show that it has a compelling state interest and that the classification is necessary to serve that interest. Some fundamental rights that have been enunciated by the Courts over the years are the right to vote, the right to travel, the right to contract, the right to have access to the courts, the right too procreate, the right to direct a child’s upbringing and the right to marry a person of any race. Thus far, the right to marry has not been extended to the right to marry someone of the same gender. Hence, if using this rung of the equal protection clause, this is step one–convincing the Supreme Court that under legal precedent, the right to marry a person of ones’ own choosing must include a person of the same gender. Assuming the Court is convinced that the precedent should be extended, it will then apply the strict scrutiny standard to the law in question. If the law in question is in a state like California that has domestic partnership laws, it is unclear how the Court would rule. Presumably, the Court would examine the provisions of the domestic partnership law and determine whether it provides the same legal protections to domestic partners as to married couples. If the Court determines that it does, the law may withstand even strict scrutiny. However, if the Court decides that the word “marriage” is necessary to confer the same rights notwithstanding the provisions of the domestic partnership statute, then presumably, California’s law prohibiting gay marriage would not withstand strict scrutiny.

As for suspect classifications, which also require strict scrutiny, thus far, sexual orientation has not been recognized as a suspect class which currently includes race, religion, National origin, or alienage. Again, if the Court can be convinced that sexual orientation should be included as a suspect class, strict scrutiny and the above analysis would be employed. The next classification is called “quasi-suspect” (which applies to laws that burden gender and illegitimate children) where a law challenged on equal protection grounds is subject to intermediate scrutiny: that is, the law must show that it serves an important state interest, and that the classification is substantially related to serving that interest. Thus, if the Court finds that disparate treatment under the law based on sexual orientation is analogous to that based on gender, the Court will apply this test–which obviously is less stringent than the strict scrutiny test described above.

Finally, all classifications that are not deemed suspect or quasi-suspect or as burdening a fundamental right are subjected to merely, minimum scrutiny or the rational basis test. Under this analysis, the challenged law will stand if it is rationally related to a legitimate state interest. This is the easiest test for the state to pass, particularly in a state like California with an existing domestic partnership statute.

In sum, the due process and equal protection analysis provided above are at the core of the gay marriage issue, and will be used by both sides to frame the debate as the matter is litigated through the federal courts–and most likely all the way up to the US Supreme Court.

(In Part 2 of this Article, I will address what I believe will be the constitutional challenges to the recent healthcare reform legislation.)