Daily Journal Reporter Thinks Prop. 8 Order In Perry v. Schwarzenneger Evokes Civil Rights Era

07/06/09 SF Daily Journal (subscription required):

This article concerns the 06/30/09 order by Judge Vaughn Walker in Perry et al v. Schwarzenegger et al. (N.D.Cal. 3:09-cv-02292, filed May 22, 2009). Judge Walker has requested briefing on the appropriate standard of constitutional review for Prop. 8, and evidence of its discriminatory intent and effect. Daily Journal reporter Rebecca Beyer claims that Judge Walker makes his requests in the context of case law that the U.S. Supreme Court relied on in the historic school desegregation case, Brown v. Board of Education, 347 U.S. 483 (1954). But I find nothing in the order that shows Walker's citations to such case law. Although Judge Walker identifies no direct or indirect connection between Brown and Perry, U.C. Davis law professor Vikram Amar observes that Walker

"lays out the analysis that equal protection is designed to help groups that are discriminated against based on characteristics they can't change" ... [Amar] added that the analysis is out of favor at the U.S. Supreme Court.

Judge Walker cites to U.S. v. Carolene Products Co., 304 U.S. 144, n.4 (1938), for the origins of the heightened, "strict scrutiny" standard of review, in which government must have a compelling interest for a law that discriminates against a unpopular minority. He asks parties for evidence on whether same-sex couples belong to a minority that is a "suspect class" for whom a discriminatory law warrants heightened review.

Karl M. Manheim, a constitutional law professor at Loyola Law School in Los Angeles, said the U.S. Supreme Court has for decades been avoiding the foundational principles in Carolene as it has moved away from finding additional suspect classes, which include race, national origin and religion. Laws targeting suspect classes require strict scrutiny.

"The strategy in writing an opinion that rejects suspect classes is to avoid Carolene," he said. "There has been an overall reluctance on the part of the court to increase the subset of groups entitled to judicial protection."

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