Moving on to the standard of review issue, it will be helpful to examine Romer v. Evans, a somewhat similar LGBT rights case from 1996, that albeit has specific distinctions from Perry. In Romer, the US Supreme Court was deciding whether a voter-passed initiative called Amendment 2, which prohibited the "protected status" of gays, lesbians, and bisexuals was constitutional. The effect of Amendment 2 was to repeal all statutes that barred discrimination based on sexual orientation, singling out only LGB people for removal on the grounds that anti-discrimination laws that protected people on the basis of sexual orientation constituted "special rights" for LGBs. Interestingly, Colorado's citizenry was content giving other folks "special rights," as they left wide swaths of other categories- including age, military status, pregnancy, parenthood, and more- protected from discrimination under their legal regime.
Using a rational basis review, in which a law must have "a rational relation to legitimate state interests," the Court declared the law unconstitutional saying in part "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects." And when confronted with the state/voter's alleged justifications for enacting the Amendment, which were to protect "freedom of association" for those opposed to homosexuality and to conserve resources to fight discrimination against other groups, the Court responded that the "breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them." Thus, "We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else."
Note here that the expressed motived of Colorado's Amendment 2 was not "we hate gay people," but rather a comparatively benign-sounding justification. And, importantly, the Supreme Court still ruled that it was unconstitutional. This could bode well for Perry as, of course, "marriage defense" attorney Chuck Cooper argued over and over again that Prop 8 was motivated not by anti-gay animus but by the will of millions of voters to channel Responsible Procreation into the institution of marriage.
Now, let's talk about that point for a moment, because I remember quite vividly the "marriage defense" campaign during Prop 8, including the messages circulated by professionals, amateurs, and astroturfers. I don't recall the Responsible Procreation message taking centerstage in this campaign. What I do recall is one Prop 8 mouthpiece comparing gay people to Hitler in a Prop 8 ad, the Yes on 8 campaign running a dishonest ad implying that Obama supported Prop 8 in an appeal to African-American voters, and a fear-mongering video ad that explicitly and ominously asked voters whether they've thought about "what it means when our children are taught about it [same-sex marriage] in school?" and showed a little girl asking about it as though merely hearing about the existence of gay couples was the Worst Thing Ever. Ads like these were par for the course during the campaign and yet, audaciously, Cooper claimed during closing argument that the campaign materials were based in the Responsible Procreation argument thus showing that the vast majority of Prop 8 supporters voted for Prop 8 because of the Responsible Procreation argument and not for reasons of anti-gay animus
Ted Olson rightfully took this claim to task, re-iterating that the ads were grounded in the idea that children should not learn about same-sex marriage because "gays are not okay." So, on the "California voters just wanna channel Responsible Procreation into marriage" argument, Chuck Cooper was way off. The evidence does not demonstrate that this was the voters intent or that Responsible Procreation is the government's interest in marriage. When coupled with the under-inclusive nature of Prop 8 wherein same-sex couples are banned from marriage but no other infertile couple is, I have a difficult time seeing how Prop 8 passes muster even under rational basis review.
If Walker decides on using strict scrutiny, which comes into play whenever a fundamental right is at issue or when discrimination occurs against certain minority groups, he would almost certainly declare Prop 8 to be unconstitutional.
To end here, if Judge Walker rules that Prop 8 is unconstitutional, the "marriage defense" brigade will undoubtedly haul out their Judicial Activism bazookas and start blasting away, as if the laws our legal system allows for must be unlimited and unchecked just because a slight majority of voters approved of the law. Indeed, right after closing arguments ended in what was a remarkably civil trial given the contentious nature of the issue, NOM's Maggie Gallagher, who has no specialized training in law, spoke irreverently, doing what she does best. Feeding into her constructed "marriage defender" persecution complex, she basically takes a piss on Judge Walker's competence and our nation's judiciary:
"Chuck Cooper is a heckuva lawyer. At stake in this case is the future of marriage in all 50 states, and he's right that this attempt to shut down the debate by constitutionalizing gay marriage will backfire. Americans have a right to vote for marriage. Ted Olson doesn't seem to understand the argument, and judging from today's exchanges neither does Judge Walker. I expect Judge Walker will overrule Prop 8. But millions of Americans do understand why marriage is the union of husband and wife and I believe the majority of the Supreme Court will as well."
Of course, also at stake in this case is Gallagher's career of defending marriage from same-sex couples, which makes her statement a conflict of interest.
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