Less than a month from today, the Supreme Court will hear argument in United States v. Windsor, currently scheduled for March 27. The votes of many of the justices are relatively easy to predict: Justice Scalia will likely vote against marriage equality, Justices Ginsberg and Sotomayor are more likely than not to support it. Justice Kennedy, however, remains more of an enigma: Seen by many reporters as a moderate swing vote, he has voted in the past to expand gay rights (such as in the landmark cases of Romer v. Evans and Lawrence v. Texas). However, he has also voted to extend legal personhood to corporations, as in Citizens United.
What makes the pending cases on marriage equality so fascinating is that both sides are targeting Justice Kennedy’s vote.
The arguments in favor of marriage equality, and the court opinions in this case, draw extensively on Kennedy’s analysis in Romer that “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
I think that marriage equality can rely on Kennedy’s vote.
It seems relatively intuitive, to me at least, reading through Kennedy’s relevant court opinions on gay rights issues that, even if he will not codify it in law, Kennedy views LGBTQ individuals as a “suspect class” of at least some kind.
That means when looking at how laws treat them, he has a higher standard for what constitutes legitimate governmental discrimination versus unconstitutional impositions of inequality. The approach that lower courts have taken in these cases is a similar one, especially in Perry v. Schwarzenegger, the famous Proposition 8 case.
In it, Judge Vaughn Walker applied a legal analysis that has been described by some as “rational basis with teeth.”
The rational basis approach is the most common and deferential legal standard used to judge constitutional cases. If a judge is using a rational basis review, it means that they are looking to see if the government had a rational reason to enact the law in question, and, if so, the law is a reasonable governmental tool to achieve that goal.
In Judge Walker’s reading, however, he made gratuitous use of Kennedy’s opinion in Romer, going so far as to conclude that not only did California violate the rights of gays and lesbians in the state, but that there was not even a rational basis for doing so.
By taking this line of argument, instead of asking courts to treat LGBTQ citizens “specially,” they appeal to Kennedy’s personal jurisprudence. Rather than arguing that there is a special reason why gays and lesbians are entitled to marriage under the constitution, proponents of marriage equality merely argue what Kennedy is already inclined to think: That the government does not have any rational basis for restricting them from engaging in the institution of marriage.
I think this approach is infinitely superior to asking the court to adopt a “strict scrutiny” approach. In such an approach, the burden is flipped: The government would have to prove the law achieves a legitimate government interest, and the onus would be on them to prove that the law is rational, rather than the other way around.
Courts are far more reluctant to extend this classification system to every group that comes to them asking for constitutional protection. It would be much better for the marriage equality movement, as well as for the judges individually, to apply the heightened rational basis standard.
In so doing, the court makes a more powerful pronouncement. Restrictions on marriage equality would not have any rational basis whatsoever. That is the strongest affirmation that the gay rights movement could hope for.
If the justices were to deploy strict scrutiny, however, and state that LGBTQ citizens were a “suspect class,” then you would have all of the typical media and lower-court backlash that you would expect.
“They’re treating the gays differently than you and I! It’s the radical gay agenda!” Limiting the discussion, however, to merely the rationalization (or lack thereof) for restricting marriage equality not only makes the arguments on a playing field that Kennedy helped to design himself, but on in which proponents of marriafe equality have had great success so far.
The marriage equality cases are the court cases of a lifetime. They will decide whether or not an equality-based political movement can have success. If this is so, then the gay rights movement will become a signal to other groups focusing on “identity politics” approaches, which so often reduces itself to a form of identity tribalism.
Coalitions splinter, identities come into conflict, and large-scale social change becomes impossible. By appealing to a simple equality, they enact what French political thinker Jacques Ranciere calls a “truly” political action. I can’t wait until we seet his court opinion.