China and its Discontents

Paul Clement’s Anti-Marriage Equality Argument and Other Complicating Factors

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Garrett Epps at The Atlantic gives a good summary of one of the main arguments made by anti-marriage equality lead lawyer and Supreme Court barrister extraordinaire Paul Clement in the Prop 8 and DOMA cases. Per Epps’ summary, Clement argues in his brief that the LGBT community is no longer politically powerless and should be allowed to continue the fight for equality through political means, obviating the necessity for judicial action. But as Epps notes, this is a disingenuous argument, because it is geared towards denying the LGBT community a suspect classification of strict scrutiny under the Equal Protection Clause.

The question of whether the court will use rational basis or strict scrutiny in these cases is exceedingly complicated, and there are some things Garrett does not mention. In the Prop 8 case Judge Walker used the rational basis test precisely because of the fear that people like Paul Clement would successfully argue against the use of strict scrutiny and overturn the decision. If the Court also uses the rational basis test, then Clement’s argument is unnecessary.

But the Supreme Court doesn’t need to fear being overturned. The use of which level of scrutiny probably hinges on Justice Kennedy, since he is the swing vote and wrote the majority opinion in Lawrence v. Texas. Personally I think the reasoning in Lawrence v. Texas translates quite well to the argument for marriage equality. As I argued here, it is a natural fit, and very powerfully-written. But it also does not map well on to these questions of scrutiny. In his opinion, Kennedy used the Due Process Clause to overturn anti-sodomy laws. But even though the use of the Due Process Clause would traditionally require strict scrutiny and the violation of a fundamental right, he doesn’t explicitly use strict scrutiny, and is apparently in favor of using a whole new form of review that hasn’t yet been entered into jurisprudence (enhanced rational basis? I am not sure).

I imagine that other justices might be opposed to introducing a whole new form of review, even if Justice Kennedy does write the majority opinion. My hope is that the Court finally settles the issue and applies strict scrutiny to the LGBT community. This would make future cases easier to decide and finally cement LGBT equality on every front. Introducing a new standard would of course have far-reaching implications, confusing the entire judicial system and overturning a lot of firmly entrenched jurisprudence. Probably a good reason why it is unlikely. But I may be completely wrong!

EDIT: I should add that I find Prof. Epps’ commentary on Justice Scalia to be hilarious:

In the eyes of its enemies (and who seriously doubts Justice Scalia’s distaste for homosexuality?), any persecuted minority may suddenly morph into a tyrannical over-caste, without pausing at the civic equality stop.

Written by Will

January 25th, 2013 at 3:36 am

Posted in Justice