California's debate regarding same-sex marriage will become a national issue if the United States Supreme Court decides to hear an appeal from either side on the outcome of the recently concluded Perry v. Schwarzenegger case (captioned Perry v. Hollingsworth at the U.S. Supreme Court). In Perry, Federal trial judge Vaughn Walker was asked to decide whether Proposition 8, which reversed a prior California Supreme Court decision upholding gay marriage, was constitutional.

Putting the emotional issues aside, this is the cold reality: If the U.S. Supreme Court takes this case and decides to uphold Proposition 8, this outcome could strip away fundamental principles that also protect religious minorities.

In the last 100 years, the Court has overturned popular state laws that prohibited interracial marriage and laws that forced sterilization of children of unwed mothers who were thought by state legislators to be genetically "immoral." In these cases, states defended their laws on the grounds that they were protecting the safety and morality of the citizens, but the Court reviewed the cases using the higher level of scrutiny found in the case of United States v. Carolene Products (1938). In Footnote Four, Justice Harlan Stone wrote that cases that met three criteria were subject to a higher level of scrutiny.

A law would receive the higher level of scrutiny, or "strict scrutiny," (see appendix for an outline) if it:

1. On its face violates a provision of the Constitution (facial challenge).
2. Attempts to distort or rig the political process.
3. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.

In other words, the majority does not always win just because it is a majority. This reasoning has been applied to the school prayer cases, civil rights cases, and a number of other discrimination cases where the Court has ruled against an abusive majority. The trend of upholding the individual rights of minorities, and in particular religious minorities, has been the subject of intense criticism by many on the right who view some individual rights that run contrary to their religious beliefs as a threat to Christian America.

Added to the Supreme Court's opinion in Loving v. Virginia which found that marriage was a fundamental right, unless there is some major shift in the Court's approach, the Court will likely apply strict scrutiny to Proposition 8.

The California Supreme Court had based its decision upholding Proposition 8, not on a moral or social safety reason, but simply that the majority should win by virtue of its majority status. The California court simply said that it did not have the power to overturn the will of the voters, and in fact held that "Proposition 8 must be understood as creating a limited exception to the state equal protection clause."

Thus, the Court admitted that Proposition 8 created a carve-out in the overall spectrum of rights. Justice Moreno, in his lone dissent, stated that "[T]he aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning."

There is no legal distinction between protected classes in California, regardless of one's religious qualms, and now that sexual orientation has been exempted from marriage rights (recognized as fundamental rights in federal and state jurisprudence), religious minorities, who have struggled in California, are now subject to exemption.

All this goes to the U.S. Supreme Court at a time when minority religious groups have been facing a rollback of rights that reverses the trend of applying strict scrutiny. Since the Employment Division v. Smith case was decided in 1990, the Court has begun to recognize an increasing number of exceptions to individual rights to practice one's faith without governmental intervention.

If the Supreme Court upholds Proposition 8, it will effectively eviscerate the principles found in Carolene Products and will create a national destabilization of individual rights. This may not matter in states where religious minorities are protected by the good will of the majority, but in other states rights of religious minority groups may start to slowly disappear.


You can read the trial briefs and trial transcripts at the American Foundation for Equal Rights website.  (We do not necessarily endorse all of their arguments, but AFER provides a valuable storehouse of the case documents in Perry v. Schwarzenegger.)



To pass strict scrutiny, the law or policy must satisfy three prongs:
First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Third, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.


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