General Discussion
In reply to the discussion: Gay people can have multipartner relationships too. [View all]prayin4rain
(2,065 posts)Equal protection applies to all laws and all people, although the level of scrutiny will change.
Substantive due process applies to all people, but only to those laws that implicate a fundamental right.
A fundamental right is either implicit in the concept of ordered liberty or deeply rooted in our history or traditions. Fundamental rights laws must withstand strict scrutiny.
Curiously, Kennedy did not state the level of scrutiny to be applied. He simply says that same-sex marriage could not even meet a rational basis test. It's hard for any laws to withstand strict scrutiny.
Kennedy seemed to stop short of declaring SSM or ANY marriage a free-standing fundamental right, thereby requiring strict scrutiny. Marriage has achieved fundamental right status in past cases mainly because it was tied to procreation, an obvious "true" fundamental right.
So Kennedy recounted the benefits and history of marriage and stated that there's no rational basis to preclude same-sex couples from those benefits. Women get intermediate scrutiny, do gay people get rational basis? But if marriage is a fundamental right, shouldn't strict scrutiny apply, regardless? Or is non-procreative marriage not quite a fundamental right?
Certainly, receiving governmental recognition is not a fundamental right. But, the government not discriminating against you is a constitutional right. But, non- discriminatory marriage could just be civil unions.
Kennedy resolved all these things by saying that marriage creates a synergistic relationship between substantive due process and equal protection. Equal protection on its own would only lead to civil unions and the right to have the state recognize your couplehood is not a fundamental right. But if marriage is held onto by the state, as the state should, after all, it's deeply rooted in our history and traditions, then it cannot be denied to same-sex couples without a rational basis.
So, I'm sure that I cleared up nothing, but this is why Turley is so annoyed. The court said a lot but it's hard to predict what any of it means for the future. I think Kennedy was making plural marriage arguments difficult with his opinion, personally. He didn't slam the door shut, but he didn't open it any wider.