|VOL. 8, NO. 10||Aug. 23, 2006|
Constitutional Law 101 How to Protect Marriage
By Virginia Armstrong, Ph.D., National Chairman
While the Georgia Supreme Court focused on procedural issues in its decision, the other three state protection-of-marriage laws were upheld "on the merits" that is, on the grounds that they did not violate substantive provisions of state constitutions (New York's and Washington's top state courts) or the national Constitution (the federal Eighth Circuit Court of Appeals upholding Nebraska's law). Regardless of the details of these cases, the three courts based their decisions on very similar grounds. What were these grounds?
"The right of homosexuals to marry one another is not a fundamental right, nor are homosexuals a 'suspect class' under laws which forbid them to marry one another." So opined the July court decisions. And in the explosion of marriage cases around the nation, the two most vital, commonly debated constitutional issues of merit are the meaning and application of the Fifth and Fourteenth Amendments' due process guarantees of "liberty" and the Fourteenth Amendment's guarantee of "equal protection of the laws." Homosexual activists argue that bans on same-sex marriage violate these guarantees, while pro-marriage advocates deny any violation. The due process and equal protection standards are almost universally argued in all types of personal liberty cases, and the courts have fashioned a series of "standards" or "tests" to help judges decide these cases. Given the overwhelming importance of due process and equal protection jurisprudence, it is imperative that we Constitutionalists understand these judicially-contrived standards. Accordingly, Court Watch here offers its first in a series of "Constitutional Law 101" studies.
The Court-Created Tests
As is true of all "tests" found by courts consulting the crystal ball available only to judges, these tests create more questions than they answer. For example, which governmental interests are "compelling," which ones "important," and which ones merely "legitimate"? [Answer: whatever the courts decide.] Who makes these determinations? [Answer: judges] And how? [Answer: however judges choose.] These and other questions rip away some of the mystical curtain that seems to separate judges from all other Americans, and reveal part of the picture of how constitutional supremacy has been replaced by judicial supremacy in America.
Court-Specified Conditions for Applying the Tests
Since the courts have created these tests, they have also, as we might expect, specified the conditions under which each of the tests is to be applied. The conditions may be summarized as follows.
More questions are obviously created by these judicial "answers" to the previous questions. For example, what is a "fundamental right"? What is a "suspect classification"? Who decides and how? Many other questions also remain.
The Courts' Conclusions
In the Nebraska, New York, and Washington decisions, the courts found that the "rational basis test" was the appropriate standard of review. The three state laws were "reasonably related to a legitimate state interest" and were therefore valid under the "rational basis test." But what do these tests and the judicially-designed plan for their application mean in detail? Court Watch will address these questions in later "Court Watch Briefings."
STAY TUNED FOR MORE "CON LAW 101"!