Perry v. Schwarzenegger, Due Process, and Equal Protection

The decision of federal district judge Vaughn Walker in the case of Perry v. Schwarzenegger finds California’s Proposition 8 unconstitutional. Judge Walker’s decision is notable for two things:

  • It affirms substantive due process.
  • It stands in the tradition of circular reasoning with respect to equal protection.

With respect to due process, Judge Walker says:

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” … Due process protects individuals against arbitrary governmental intrusion into life, liberty or property….

The freedom to marry is recognized as a fundamental right protected by the Due Process Clause….

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.”

Judge Walker thereby adopts the logic of the U.S. Supreme Court in Lochner v. New York (1905), a case that upheld the right of private parties to enter into employment agreements that run contrary to the labor laws of a State. Lochner, in a roundabout way, upheld liberty of contract, which is a right specifically recognized in the Constitution of the United States (Article I, Section 10).

Lochner epitomizes substantive due process, a juridical concept that has been in bad odor for decades, but which ought not to be. The essence of Lochner — and substantive due process — is exactly as stated by Judge Walker: “Due process protects individuals against arbitrary governmental intrusion into life, liberty or property.” (For more about Lochner, see my post, “Substantive Due Process, Liberty of Contract, and the States’ Police Power.”)

Judge Walker goes on to address equal protection:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”…

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.

The circularity of Judge Walker’s reasoning with respect to equal protection begins much earlier in his decision, where he writes that

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. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

But the right to marry, historically, has been the right to choose a spouse of the opposite sex, not merely to choose a spouse. Judge Walker even acknowledges that fact, inadvertently, when he puts aside “relative gender composition,” as if it were a mere trifle and not central to a social tradition that dates back millennia and should not be swept aside casually by a judge because he finds it “irrational,” on the basis of spurious social science. Walker then says that “gender is not relevant,” thus circularly assuming that which is to be proved. As if in support of that assertion he asserts, laughably, that “gender restrictions … were never part of the historical core of the institution of marriage.”

In sum, Judge Walker approaches the constitutional matter of equal protection by assuming that gays have the right to marry. Given that assumption, it is easy to assert that Proposition 8 amounts to a denial of equal protection for gays who seek to marry. (For more about the perversion of the Equal Protection Clause through circular reasoning, see my post, “‘Equal Protection” and Homosexual Marriage.”)