News Release: Faculty Experts, Politics

Aug. 5,  2010

Prop 8 Ruling Represents Significant Legal, Social Developments

The ruling in Perry v. Schwarzenegger, striking down California's ban on same-sex marriage, represents the intersection of significant legal and social developments, says Emory University's Robert Schapiro, professor of constitutional law, in an analysis of the federal court decision Aug. 4.

"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," Schapiro says.  "For most of the 20th 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," Schapiro says.

However, the federal courts have shown signs of dissatisfaction with the rigid, two-box doctrine in recent cases, especially when it comes to issues relating to sexual orientation, he says.

"Recent legal developments have required more than traditional moral disapproval to justify laws that deny equality. Judge Walker concluded that social experimentation and psychological reseach have not offered scientific support for bans on same-sex marriage," he says, noting that the judgecited psychological research that 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.'

 "Law and society came together in Judge Vaughn Walker's courtroom to invalidate California's ban on same-sex marriage. The ruling marks the beginning of the federal stage of this debate," Schapiro says. 

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