Nix v. Life: May 2013

Wednesday, May 8, 2013

Gay Marriage DP/EP Analysis Outline

Due Process

Defining the Right

The Court has said to define the right at the most specific level of generality possible

Right to marry?

Tradition of protecting this

Loving v. Virginia
But the tradition mostly only contemplated conjugal marriage - Skinner

So strict scrutiny

Right to engage in homosexual activity?

No tradition of protecting this
So rational basis

Lawrence and emerging values

This would be helpful for proponents to argue because the public is beginning to recognize gay marriage as normal
Especially because the right to marry is a more general right than the right to gay marriage, which is more specific (Glucksberg)

State law to justify?

If rational basis

Needs to be legitimate state interest

Morality might not be a legit state interest - Lawrence
State's interest in procreation - that's a legitimate state interest

If strict scrutiny

Needs to be compelling state interest

Morality is not a compelling state interest - Lawrence
State's interest in procreation - but that's probably not compelling

Equal Protection

Can homosexuality be placed in an already existing category?

Race is no good
Gender is the best analogy, but it's not the same

Is homosexuality a suspect class?

Discrete and insular minority

Most likely yes

But there is some middle ground
It's possible to define the group as persons who want to marry a person of the same sex

The pregnancy discrimination thing from Geduldig - not discriminating against gays, but discrimination against same sex couples, but that's a weak argument

Visible and Immutable

Visible? No

Immutable? No, though some people think it is

Historically been discriminated against

Anti-sodomy laws
Social discrimination

Relevance of the characteristic to distributions of government benefits and burdens

One of the state's biggest interests in marriage is its potential for procreation, which is physically impossible for homosexuals
Characteristic is probably relevant to this particular distinction

Court has said it's not a suspect class in Romer

And that they get rational basis but maybe with some teeth

Level of Scrutiny

Strict

Probably not because the characteristic is relevant to the distribution of government benefits and burdens

Intermediate

If anything, this is where it would belong
It has many characteristics of a suspect class, but doesn't rise to the level of when it would need strict scrutiny

Rational basis

This is where the Court has previously put homosexuality, but it has too many characteristics of a suspect class to get rational basis

Is marriage a fundamental right?

Loving and Zablocki

Both said marriage was a fundamental right, but both only contemplated conjugal marriage

If yes fundamental right

Strict scrutiny

If not fundamental right and no suspect class

Rational basis - was it reasonable?

Frickin Constitutional Law

Preface: Due to the possibility of Honor Code violation, while I am writing this only a few hours after the Con Law exam, I am scheduling its publication for after all exams are finished.

So about a month ago, I'm talking to my buddy in Con Law about what might be on the exam. He says that our professor always does some really topical issue. Well, as everyone who has a TV, twitter, facebook, or life knows, the most topical legal issue right now is gay marriage. And I could tell by the questions people were asking at the review session that everyone thought that would be the subject of our big question.

It wasn't.

Professor H. even said: Due Process and Equal Protection are the two big issues. (We'd had a midterm discussing Justiciabilty, Commerce Power and Federalism, so none of those were on the exam.)

And he didn't test us on ANY OF IT.

My buddy in Con Law said he discussed EP in the discussion on Civil War Amendment Enforcement, but not very much of it. I tried so hard to put it in there, but I couldn't get the issue to fit.

I thought gay marriage was going to be the subject of the exam so much, I made a supplemental outline for just that topic. I was so proud of that supplemental outline. I might post it here so all that work won't go completely to waste.