After some more reflection, I had a few other thoughts on the reasoning of Judge Walker’s opinion in Perry v. Schwarzenegger.

First, why wouldn’t intermediate scrutiny apply for a classification based on gender? Walker found that Prop 8 targets people because of their sexual orientation, which is equivalent to discrimination based on sex.

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

Later Walker writes:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

If sexual orientation discrimination is “equivalent” to a claim of sex discrimination, why would the Court simply apply intermediate scrutiny, like they did in Craig v. Boren or VMI? Why would strict scrutiny apply? And if strict scrutiny applies, why did his entire equal protection analysis involve rational basis review? Additionally, his rational basis review was hardly rational basis review. This makes the rational basis plus bite standard from Cleburne and Roemer look like tapioca pudding. It’s like he didn’t apply the one tier of scrutiny that should have applied (intermediate scrutiny) but did apply the standard that did not apply (rational basis), and did not apply it correctly (rational basis plus super-duper bite).

Second, I am having difficulty reconciling how Walker’s due process and equal protection arguments overlap. Invariably when talking about gender equality or marriage equality, fundamental liberty interests necessarily bleeds into sex/sexual orientation classifications protected by the equal protection clause. I get that. But I am confused with how Walker got there.

Loving v. Virginia supports the proposition that the liberty interest in marriage is fundamental. But correct me if I am wrong, but Loving considered the traditional (I use the word traditional in a descriptive, and not a normative sense) definition of marriage. I mostly agree with Walker’s arguments that marriage has evolved so it no longer represents the gendered roles that the institution imparts. So in that case, does the fundamental right recognized in Loving support same-sex marriage?Walker also relies on Glucksberg. Glucksberg Step 2, which is usually fatal, requires a narrow definition of the right. Walker could not have defined marriage more broadly.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.

If Walker would have held that Prop 8 violates equal protection–because it irrationally discriminates based on sexual orientation–he could have established the proposition that the right protected in Loving was the same right opponents of Prop 8 sought. Therefore SSM is a fundamental right, and subject to strict scrutiny. Once there, strict scrutiny applies for a fundamental right and its a walk in the park. He would not have needed to recognize a “new” fundamental right. Simply he would have used equal protection to show that all types of marriage are marriage under Loving, and Prop 8 violated that right. This, to me at least, seems to flow much more logically under our 3-tiered constitutional system.

Third, a follow-up question. If a Priest in California refuses to marry two men, or two women, will someone bring suit alleging violation of a fundamental right? This would be an interesting freedom of association/free exercise/substantive due process kerfuffle. Stay tuned.

Just some initial thoughts. I am certain Judge Reinhardt will write a much better opinion on appeal.