The legal issue behind Prop8: strict scrutiny

The legal issues behind the Prop8 case, from the Keen News Service

Judge Walker will, of course, decide. The primary questions before him are whether California’s ban on same-sex marriage violates the federal constitution’s guarantee to equal protection and due process.....

“I’ll be floored if he does not offer the Ninth Circuit [U.S. Court of Appeals] his conclusions about whether very rigorous scrutiny should be applied to antigay discrimination,” said Lambda’s Pizer.

Kendell said she thinks Walker will use “some higher level of scrutiny” than just a simple “rational” one—the easiest level to satisfy. The higher levels of review—quasi and strict—she noted would be “enormously helpful in challenging all manner of laws that discriminate based on sexual orientation.”

The highest level of review—strict scrutiny—is applied to laws that disfavor persons on the basis of race, and Olson relied heavily on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has “traditionally” been understood to be one man and one woman does not constitute a reason to ban same-sex marriage.....

But if Walker applies the lowest level of scrutiny, said Kendell, “virtually every state law we attack survives because, at the rational basis level, laws essentially get a free pass.