To my readers who wondered if the authorities had come and dragged me off to Guantanamo Bay after my last post, don’t worry, I still retain my freedom. My wife and I took a well deserved vacation to Arizona and Oklahoma. Sometime in the near future I plan to describe my experience getting pulled over in Oklahoma and getting sniffed by a drug detection dog……but that will be at a later date.

With all the recent news coverage of oral arguments in the Supreme Court of the US (SCOTUS) I thought I could use the event to discuss a little known aspect of SCOTUS review that is perhaps the most important aspect for an attorney going before the court. The most important question for all cases is: what level of scrutiny will the justices use to review this case?

You see, the level of scrutiny determines who has the Burden of Proof. This means one side or the other will be on offense and the other of defense. The one with the burden is on offense and has a greater burden to prove their case than the other side.

So how does a lawyer before the SCOTUS know if they will have the burden? Well that depends on the level of scrutiny. Remember that any case accepted before the SCOTUS has either a fundamental right in question or is a question of federal or state law that is challenged under the umbrella of the US Constitution

The lowest level of scrutiny is Rational Basis review. Under the US Constitution’s tenth amendment, any power not delegated to the United States (federal government) nor prohibited by it to the states, are reserved to the states respectively, or to the people. In other words, if it isn’t listed in the constitution, the state can regulate the issue through its Police powers. This doesn’t mean the state police have the ability to run around and arrest you for anything not in the constitution. Police powers are the inherent right to regulate the things that occur there. Police powers include things like zoning regulations and fish and wildlife rules. These are things that the founding fathers believed were better left to the states than to be regulated by the federal government.

Under rational basis review, the court has a presumption that a regulation created under the police powers is constitutionally valid. The party challenging the regulation has the burden of proving that it does not lead to any discernable or understandable legitimate purpose. In other words, if the court can find any rational basis that a state legislature could make the regulation then they will find it constitutional.

Rational basis is a very difficult standard to overcome. Challenging a state or local regulation by proving the drafters of the law had no rational reason for the law is very difficult. (except for a minor case that I will talk about later in this post that may play a giant role in the decisions on gay Marriage. If you are the type to look up cases on the internet the case is called Romer v. Evans. Stay tuned).

In fact the courts have a presumption that the law is valid. As the old saying goes….it is pretty hard to beat city hall…….unless the rule infringes on a fundamental right protectected by the US Constitution or directly involves a rule based on a protected class of people such as race or gender. In those cases, the SCOTUS uses different review standards.

Those two standards are strict and semi-strict scrutiny. In both cases the proponent (government) of the law has the burden of proving that the law is constitutional.

Semi-strict scrutiny is used for rules based on the gender of a person (among other classifications that we wont discuss here like alienage, and illegitamacy classifications) . A different legal drinking age for alcohol for men and women would be an example. In such a case the government has the burden of proving that the law has a substantial relation to an important government interest. This is a higher standard to prove and the government has the burden of showing that it is related to their interest.

The other standard is strict scrutiny. In cases where a fundamnetal interest is at stake, such as the second amendment right to bear arms or any other constitutional right the 14th amendment applies to the states (which oddly is not all of them but we will discuss that some other time) the courts use Strict Scrutiny.

Strict scutiny is also used for regulations based on suspect classes such as race or ethnicity. That’s not to say that the race of a person is suspect…..it means that a regulation that creates different outcomes based on the race of a person is automatically suspect by the courts. The government has the burden to prove that the regulation is necessary to achieve a compelling government interest (higher than semi strict scrutiny) that can not be achieved through less restrictive means.

One interesting aspect of racial classification, is the case that established the standard for a protected class. The case is called U.S. v Carolene Products. Ironically, this is a case about milk and margerine but it is the defining case on which cases get rational basis review and which case get stricter review. The weirdist thing is the definition of what a protected class. It comes from a footnote to the case but every law student learns Carolene Products footnote four by heart if they want to pass their ConLaw final. Footnote four (not even important enough to go into the main text of the case) lays out that people with immutable characteristics such as race or gender (in other words they are born that way and can’t change them) create protected classes because their circumstances are not of their own actions.

So after all of that, how does this relate to the gay marriage debate? Well, there are currently two cases about gay marriage before the SCOTUS. One involves a challenge to California’s proposition 9, which restricts marriage to a man and a woman. The other case is a challenge to the federal Defense of Marriage Act. Now this may seem simple, but all the above discussions of standard of review come into play here.

Remember how under rational basis review a state law is presumed valid? Well the federal government has always considered the rules a state imposes on it’s citizen’s who wish to marry as part of the police powers. The courts only stepped in with stricter scrutiny when another issue triggered it. For example, bans on interracial marriages triggered the protected class status of race from Carolene Products footnote four and therefore strict scrutiny.

Sexual preference however was never listed as an immutable characteristic so states could enact laws that banned gay marriage so long as the states had a rational basis for doing so. Most of the time the states argued that it had a substantial interest in the raising of any children born into the marriage in a two parent mother/father relationship. This standard held for years despite the fact that many heterosexual parents were divorcing, raising the children as single parents, cohabitating with adults, not necessarily the biological parent of the children….etc. Rational basis review allowed the states to make any “rational” argument and win.

Now here is the wrinkle I discussed above. Back during the 1990’s there was a case called Romer v. Evans. It was a challenge to a Colorado Citizen’s Initiative that prevented the state from enacting laws that would proect citizens based on their sexuality. (in other words no laws that protect homosexuals from discrimination.) Now normally, the courts would review this under rational basis and give it to the state but in Romer v. Evans the Supreme Court took a second look and said allowing the state to actively discriminate against it’s citizens was not rationale.

For the first time the courts said that discriminating against homosexuals was not permitted. The court did not go so far as to create a protected class for homosexuals but it sure created an uproar. At first law professors were all attwiter about what the ruling meant. Some wanted to create a new standard of review (sometimes called rational basis with a bite.) Law review articles were written, professors held their breaths to see the other shoe drop….and nothing more happened, so Romer v. Evans kind of faded…….until now, during the California gay marriage debate. My prediction is you will see a mention of old Romer, no matter how narrow the ruling is.

The other case about gay marriage before the SCOTUS is a challenge to the Defense of Marriage Act. Enacted during Bill Clinton’s presidency, DOMA is a federal law that only recognizes marriage between a man and a woman for federal purposes. The case revolves around a committed lesbian couple that could not get officially married but treated themselves as married and amassed property together. The case occurred because when one of the lesbians died, the other had to pay much more in federal inheritance taxes than a traditionally married couple would have and she decided to sue under the equal protection clause of he US Constitution.

In the DOMA case I think the court has a much greater chance of making a revolutionary ruling. The plaintiffs in this case are arguing that homosexuality is a condition one is born with such as race or gender and therefore deserves to be added to the Carolene Products foonote four protected class status. If the courts agree then the review will be strict scrutiny and DOMA is likely to fail.

If that occurs it will ripple through society. Homosexuals might be able to qualify for affirmative action programs. They would have every right a heterosexual would have. This is apparently what the majority of polled young people believe. I suspect their fundamentalist elders are not so in favor.

However the cases come out (sorry for the pun), now you will better understand how the SCOTUS reviews cases. I suspect I will refer back to this post many times in future posts to use as an example of standard of review. I know it’s long but it is important and knowing is half the battle

By the way….you may be questioning why if gender is an immutable characteristic it only gets semi-strict scrutiny? Well, I have my own theory. I think the courts did it because they knew that pure strict scrutiny would have opened up the US military to suits about letting women participate in combat. Now that women are being integrated into most front line forces, I have to wonder if semi strict scrutiny will still apply. I also wonder if in the interest of equality of the sexes, women will need to register for selective service (the draft) as men now do at the age of 18? Could be the next big SCOTUS case. Stay Tuned!