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June 2012
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Courts muddle equal protection

By John David Dyche

Equal protection of the law seems like such a simple concept. As applied by America's federal courts, however, it is a devilishly difficult one. Two current cases from Kentucky illustrate the inconsistency, if not incoherence, of contemporary equal protection jurisprudence.

The United States Court of Appeals for the Sixth Circuit recently reversed U.S. District Court Judge John G. Heyburn II in a case challenging Kentucky's law barring grocery stores from selling liquor and wine. Heyburn had held that the law violated federal equal protection because there was no valid basis for treating grocery stores differently than other stores, such as drugstores, that can sell liquor and wine.

Another case now before Judge Heyburn seeks to strike down Section 233A of the Kentucky Constitution on equal protection grounds. Ratified by Kentucky voters in 2004, Section 233A states, "Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky."

Federal courts have already held similar constitutional provisions in Utah and Oklahoma unconstitutional on equal protection grounds. These rulings are the entirely predictable outgrowth of the Supreme Court's decision in the case U.S. v. Windsor striking down the federal Defense of Marriage Act last year.

In most cases the formula that federal courts supposedly use to determine if a law violates equal protection is called the "rational basis" test. The court presumes the law is valid and upholds it if there is a rational basis for its classification or distinction. Cases involving certain so-called "fundamental rights" or "suspect categories" employ a tougher threshold called "strict scrutiny."

Alcohol sales statutes are reviewed under the more relaxed "rational basis" standard. While the Windsor decision left it unclear, it appears from lower federal court cases that marriage amendments are, too.

It is not asking very much for a law to have a rational basis behind it. Even in our political system most laws are not so far removed from reason as to be irrational. So most statutes pass muster under this lenient test.

But Justice Kennedy's opinion in Windsor, joined by Justices Ginsberg, Sotomayor, and Kagan, made a mess of this area of law. The actual constitutional basis for that decision is murky, but Kennedy indicates that the only basis for a law preferring traditional marriage is to degrade, demean, or harm same sex couples.

In dissent, Justice Antonin Scalia pointed out that "there are many perfectly valid - indeed, downright boring - justifying rationales for" such laws, and "their existence ought to be the end of this case." Scalia went on to correctly predict that Kennedy's activist opinion spelled the end of legal protection for traditional marriage.

"By formally declaring anyone opposed to same-sex marriage an enemy of human decency," Scalia said, "the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court's declaration that there is 'no legitimate purpose' served by such a law, and will claim that the traditional definition has 'the purpose and effect to disparage and to injure' the 'personhood and dignity' of same-sex couples."

That is exactly what is happening in Kentucky now. Gov. Beshear and Attorney General Jack Conway, both Democrats, are defendants in that case, but their defense of Kentucky's marriage amendment is tepid at best. Beshear and Conway stress that they are only defending Section 233A out of duty.

Instead of mounting a vigorous defense of Kentucky's amendment and the right of states to regulate marriage, Beshear and Conway meekly say that they "recognize the changing environment of marriage jurisprudence throughout this country and defer to the Court's determination in the instant case." They offer the bare minimum defense of the Kentucky Constitution.

So here is the current status of federal equal protection law: The government has a rational basis for preventing grocery stores from selling liquor and wine even though grocery-selling drug stores can sell liquor and wine, but the government does not have a rational basis for defending traditional marriage even though that institution has been a cultural cornerstone for several centuries. To many, that seems exactly backwards.

There is a right way and a wrong way to support gay marriage (as this columnist does). The right way is to enact it by law as some states have done. The wrong way is for a few judges to cram it down the public throat against the popular will by contorting the Constitution.

Perhaps the Supreme Court will yet save states' rights to define marriage traditionally. It should never have come to that.

John David Dyche is a Louisville attorney and a political commentator for WDRB.com.

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