A reader writes:
Here are the key passages from the Perry v. Schwarzenegger Slip Opinion p 108-9
"The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” US Const Amend XIV, § 1. Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. See Washington v Glucksberg, 521 US 702, 719- 720 (1997). When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US 374, 388 (1978). "
Id p 116 "Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Carey v Population Services International, 431 US 678, 686 (1977) ... As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review."
Strict scrutiny is the highest, and rational basis the lowest level of appellate review. As any 2nd year law student can tell you, the standard of review almost always dictates the outcome in constitutional questions. Rational basis review means that the strong odds are that the proponents of a restriction win, strict scrutiny means that long odds are they lose.
And yet, Judge Walker is saying that the evidence at trial didn't even pass rational basis review. To overturn this opinion, the court would essentially have to craft a new standard of review, lower even than rational basis, for laws impacting only gay people's civil rights: separate and explicitly unequal. Or they can always punt.
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