Jun 25, 2014

Posted in Substantive Federalism

Strict Scrutiny Applies to Same Sex-Marriage Ban

The 10th Circuit’s opinion in Kitchen v. Herbert applies strict scrutiny to the due process analysis. Why? Because it is a “fundamental liberty.”

The Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993) (quotation and emphasis omitted). By the same token, if a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (quotation omitted). Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless appellants can show that Amendment 3 survives strict scrutiny. 

Many pages later, in a footnote, without any citations, it explains further:

11 Because we conclude that marriage is a fundamental right, we do not consider whether Amendment 3 passes muster under rational basis review. Similarly, we do not address whether Amendment 3 might be subject to heightened scrutiny on any alternative basis.

That’s it. There you go. Further evidence to confirm my theory that tiers of scrutiny are largely irrelevant.

It’s also fuzzy if the court is applying a due process, or equal protection analysis. Rather, this is a violation of the 14th Amendment.

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws.

In summary, we hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. We AFFIRM the judgment of the district court.

There is no separate analysis. We don’t need no stinking clauses. Further evidence to confirm my theory that the two inquiries are largely merged.

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