August 5, 2010 11:03 Age: 4 yrs

Schapiro Discusses Perry v. Schwarzenegger Ruling

By: Robert Schapiro

The ruling in Perry v. Schwarzenegger, striking down California’s ban on same-sex marriage, represents the intersection of significant legal and social developments.

With regard to constitutional law doctrine, the decision demonstrates the importance of the federal courts’ new, higher level of scrutiny of laws resting on traditional moral assumptions. For most of the twentieth century, the Court divided equal protection claims into two boxes. If the claim fit into the narrow category of “strict scrutiny,” generally limited to issues of race and gender, then unequal treatment was presumptively unconstitutional. Otherwise, the federal courts generally allowed all kinds of differential treatment, on the theory that the legislature might possibly have some basis for distinguishing between the young and the old, or opticians and optometrists, or all kinds of other groups. Basically, the courts did not require any justification for unequal treatment, outside of matters of race and gender. Relying on that kind of reasoning, the Court upheld a ban on same-sex sexual conduct in the Bowers case in 1986.

But then the Court showed signs of dissatisfaction with this rigid, two-box doctrine, especially when it came to issues relating to sexual orientation. In the Romer case in 1996, Justice Anthony Kennedy wrote a decision for the Court striking down a Colorado initiative on the theory that it reflected irrational prejudice against gays and lesbians. The Court did not apply “strict scrutiny,” but held that a law required some basis other than traditional moral disapproval. In 2003, Justice Kennedy used this same kind of reasoning to find a constitutional right to same-sex sexual activity. That decision, Lawrence, held that reliance in cases like Bowers on traditional moral principles no longer sufficed. The Court would no longer accept laws that seemed grounded in traditional prejudices.

In Perry, Judge Vaughn Walker relied on Romer and Lawrence to require some basis other than traditional moral views to uphold the ban on same-sex marriage. What could that basis be? The best candidate for defending heterosexual marriage was providing an optimal setting for procreation and child rearing. But this is where contemporary social developments intrude. Whatever the traditional role of marriage, in the contemporary United States, society has driven a wedge between marriage and biological procreation. Many people get married and do not have children. Other people have children without getting married. Because many couples rely on adoption or surrogates, marital children often are not biological children. Do these various arrangements influence the well-being of children? Judge Walker found that healthy child development does not rest on biological ties. Specifically, he found that psychological research had conclusively established that children “raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.

In sum, recent legal developments have required more than traditional moral disapproval to justify laws that deny equality. Social experimentation and psychological research have not offered scientific support for bans on same-sex marriage. Law and society came together in Judge Walker’s courtroom to invalidate California’s ban on same-sex marriage.

Professor Robert Schapiro specializes in the areas of constitutional law, federal courts and civil procedure.

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