Last Wednesday a three judge panel of the US Tenth Circuit Court of Appeals heard oral arguments in the appeal of the US District Judge’s’ ruling that struck down Utah’s ban on same-sex marriage. Although over a dozen federal district courts around the nation have struck down the ban or aspects of it since the US Supreme Court’s DOMA decision last summer, and not a single judge has upheld it, this is the first time that this issue has reached the level of an Appeals Court, so this is a significant case
The district courts depended heavily on the DOMA ruling to arrive at their conclusions. As I discussed earlier, that ruling did not deal with the constitutionality of same sex marriage directly. Instead it had two elements. One was the so-called federalism issue of whether states had the right to determine who could be married. The Supreme Court said they did and that the federal government had to go along with whatever the states decided. But the other element was whether same-sex couples could be denied marriage benefits for no justifiable reason and whether moral disapproval of their conduct was a sufficient one, and the court ruled that they could not. It is this aspect of the ruling that has been so influential in the lower courts striking down the bans.
In order to decide the Utah issue, a key factor that the Appeals Court focused on in the oral arguments is what standard the courts should use to judge the case. There are three levels of scrutiny: rational basis, heightened or intermediate scrutiny, and strict scrutiny.
The rational basis is the lowest standard.
To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are considered more stringent. Rational basis review is generally used when in cases where no fundamental rights or suspect classifications are at issue.
The intermediate scrutiny level is stronger.
To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.
The strict scrutiny requirement is the strongest.
To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is “strict in name, but fatal in practice.”
For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law’s enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.
Megan Verlees says that what standard is used determines who has the burden of proof in the case.
Well, it seemed like [the Tenth Circuit Appeals court judges] were very concerned about this question of what kind of scrutiny they should give Utah’s marriage laws. Whether they should look at it with what’s called a rational basis, which is where the burden of proof is on the group that’s being discriminated against by the law to show that they’re being harmed unfairly and with animus, with malice, or to give it heightened scrutiny where the burden of proof would then be on the state of Utah to show that it had such an overwhelming interest in defending the traditional definition of marriage that it could make a law that harmed gay couples.
Lyle Denniston has his usual excellent report on the hearings. As he says, the issue of the appropriate standard dominated the discussion.
If there was one dominant issue, though, it appeared to be the rigor of the test the appeals courts will use to judge the constitutionality of same-sex marriage bans — if they do reach that issue on the merits. One judge bluntly told the attorneys Wednesday that if the test is any stronger than “rational basis” — the easiest test to meet — then Utah’s marriage ban would be struck down, but that the ban would survive that easier standard.
If the Tenth Circuit is to move to a higher standard, it would have to cast aside or draw a distinction from a ruling that it had issued in 2008, in the case of Price-Cornelison v. Brooks. There, the Tenth Circuit firmly declared that claims of discrimination based on sexual orientation are to be judged only on a “rational basis” test. The Price-Cornelison precedent was explored at some length Wednesday.
Some federal judges — and the U.S. Court of Appeals for the Ninth Circuit — have interpreted the Supreme Court’s ruling last Term in United States v. Windsor as supporting the use of a “heightened standard” of review in gay rights cases. In striking down a key part of the federal Defense of Marriage Act, the Supreme Court did not indicate what standard it had used and, indeed, it has never said explicitly what test is the controlling one. (Another appeals court, the U.S. Court of Appeals for the Second Circuit, adopted the higher standard in the Windsor case before that lawsuit went to the Supreme Court.)
Since there are so many such cases working their way through the various appeals courts, legal analysts are suggesting that this issue could go before the US Supreme Court as early as the 2014-2015 term.