Why Malice Matters: a Look Back at the Prop 8 Trial

I haven’t kept close tabs on the Prop 8 trial on this site, because others leave so very little room for improvement. But with the conclusion of testimony on Friday, it may be time to look back at one of the most remarkable and, for some, confusing aspects of the trial. Namely, why, this member of the anti-marriage set asks, did Judge Walker permit testimony about the nature, falsity, and general “nastiness” of the pro-Proposition 8 campaign? Sure, anti-marriage groups basically equated homosexuality with child molestation and prostitution. But who cares? It’s just hardball politics!

Not exactly. But to explain why, we must take another brief foray into equal protection law.

When we talk about equal protection law, we refer to a system with its own internal set of inequalities. When a statute is challenged on equal protection grounds, the reviewing judge first decides upon a standard, and corresponding decisionmaking framework, to use when analyzing the statute. It looks something like this:

  • Classification based on race, national origin, citizenship, religion, etc…: the classification must be narrowly tailored to a compelling government interest, and the least restrictive means of achieving it. The burden of proof lies with the defendant (“strict scrutiny”).
  • Classification based on gender: the classification must be substantially related to furthering an important government interest. The burden of proof lies with the defendant (“intermediate scrutiny”).
  • Classification based on anything else: the classification must be rationally related to a legitimate government interest. The burden lies with the plaintiff. (“rational basis” review).

It’s generally understood that any classification in the first category will fail; any in the second will fail unless it’s keyed to some “real difference” between men and women; and any in the third will succeed, unless the classification is, truly, nonsensical. Tier three is designed to give the legislature a fairly free hand: in practice, it’s even more forgiving than it appears in theory.

Look over the set of options briefly, and you’ll note that “sexual orientation” falls into neither the first nor the second tier, meaning any challenge to a classification based on sexual orientation must overcome a fairly weighty presumption against the plaintiffs. An early solution to this problem, discovered by clever pro-equality advocates and ratified by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996), attempts to endow the phrase “legitimate government interest” with real meaning, by setting out what an “illegitimate government interest” would look like. Namely, if a statute inflicts harm on a group for its own sake, it must fail.

“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” [. . . .] [A] State cannot so deem a class of persons a stranger to its laws.

Taken at face value, this language places meaningful limits on the types of discriminatory legislation that our tier three process would otherwise tolerate, making it quite significant indeed. Reading Romer for all it might be worth, animus in the legislative process could make an otherwise valid law invalid. But the language comes from a Kennedy opinion, and Kennedy’s more effusive holdings, among which Romer numbers, tend to be cut down in application. Accordingly, it was an open question, in my mind, how much work we could expect Romer to do going forwards.

Fortunately for the plaintiffs, Judge Walker’s pre-trial rulings permitting testimony on the animus that drove Proposition 8 evinces a desire to take Romer seriously. Good. Animus should matter, and the courts should not be blind to its presence in lawmaking. There are a few great points in legal history where judges have similarly turned to “soft” factors: when done right, the result shakes the world. By looking at sociology to see the real harm done by segregation, Brown v. Board accomplished what the reality-blind, history-bound black-letter law of the day could not. If, in deciding Perry, Judge Walker makes a similar effort to acknowledge reality, he risks being soundly reversed by a Supreme Court unwilling to take its own precedent seriously. But history will remember him.

One comment

  1. […] In fact, I share Boies’ confidence, and the New Yorker’s, that, especially because Judge Walker appeared to take Romer v. Evans deadly seriously, as one should, we’ll get a pro-equality ruling that, while not recasting gay men & women […]

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