# Federal Judge moves towards overturning DOMA **URL:** \ **Category:** Great Debates\ **Created:** [January 20, 2011, 4:20am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294 "2011-01-20T04:20:05Z")\ **Posts on this page:** 20\ **Page:** 9
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 26, 2011, 11:11pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/161 "2011-02-26T23:11:16Z")
> [@Stratocaster](#): > > The one I just provided, or the actual AG letter. Or the excerpt I provided in my last post. They are NOT asserting that they can’t reasonably defend the law. Quite the contrary–if the courts decide this is to be decided on a rational basis, they WILL defend the law. Why? Because they believe it meets that standard. After reading your link, it looks like they sort of side stepped the question of whether any reasonable arguments could be made for adopting the rational basis standard of review in that case. It’s clear he doesn’t think any reasonable arguments can be made under a heightened scrutiny approach, but he doesn’t address the reasonableness of arguments for the adoption of a lower standard. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [February 26, 2011, 11:15pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/162 "2011-02-26T23:15:39Z")
> [@yorick73](#): > > It seems to me the rational argument is that 9 circuit courts have already made the case that homosexuals shouldn’t be treated as a suspect class. The First Circuit has made that determination, which is why the government defended Section 3 of DOMA under the rational basis standard in _Gill v. OPM_ and _Massachusetts v. HHS_. The Second Circuit hasn’t made that determination, thus the Justice Department was free to determine for itself the standard they ought to use. The Ninth Circuit mandated heightened scrutiny in the _[Witt v. Department of the Air Force](http://en.wikipedia.org/wiki/Witt_v._Department_of_the_Air_Force)_ case. As far as I know, they are the only circuit that has done so. I don’t know where the other circuits stand on the issue. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 26, 2011, 11:15pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/163 "2011-02-26T23:15:58Z")
> [@Lakai](#): > > After reading your link, it looks like they sort of side stepped the question of whether any reasonable arguments could be made for adopting the rational basis standard of review in that case. > > It’s clear he doesn’t think any reasonable arguments can be made under a heightened scrutiny approach, but he doesn’t address the reasonableness of arguments for the adoption of a lower standard. I think the AG letter is a bit incoherent. Nonetheless, it explicitly notes that the AG and the administration believe that the law meets the rational basis standard. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 26, 2011, 11:45pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/164 "2011-02-26T23:45:50Z")
> [@Stratocaster](#): > > Elvis, maybe you should give President Obama and the AG a call if you’re truly interested in a basis for how this law passes the rational basis test, since it seems to be a given for them. No, they’re sidestepping that issue just like they’re sidestepping every other one. And you can’t come up with anything either. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 27, 2011, 12:14am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/165 "2011-02-27T00:14:39Z")
> [@ElvisL1ves](#): > > No, they’re sidestepping that issue just like they’re sidestepping every other one. > > And you can’t come up with anything either. I think you missed the point. There is no **need** to give any basis. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 27, 2011, 12:18am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/166 "2011-02-27T00:18:21Z")
Wrong. It’s trivially easy to do, _if there IS a rational basis_, but you do have to do it. So, what do YOU think such a basis might be? :dubious: ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 27, 2011, 12:22am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/167 "2011-02-27T00:22:55Z")
That’s funny. Everybody’s wrong but Elvis. It is really easy to meet that standard. It just is. Here’s [an example](http://en.wikipedia.org/wiki/Lawrence_v._Texas), an important aside in a case that did not specifically address SSM: > [@](#): > > O’Connor explicitly noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to “preserv[e] the traditional institution of marriage” and not simply based on the state’s dislike of homosexual persons. So, does an actual SC Justice acknowledging an acceptable rational basis argument for a DOMA-like law do the trick for you? Again, the question is not whether you or I find the rational just or compelling. Scalia believes similarly (though against an even broader rational basis–that the legislature’s moral judgments should generally be deferred to in rational basis cases, whether or not SCOTUS has similar moral judgments), and I suspect he won’t consult you if he considers DOMA against a rational basis standard. I think they should rename this standard. It gets too many people’s panties in a bunch in its implication of wisdom or logic (or something). In reality, it is no such thing and isn’t intended to be. It is a very permissive standard, intended to be deferential to the legislature. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 27, 2011, 12:39am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/168 "2011-02-27T00:39:36Z")
> [@Stratocaster](#): > > That’s funny. Everybody’s wrong but Elvis. Please. :rolleyes: > [@](#): > > It is really easy to meet that standard. It just is. But it does have to be met, as you no doubt were about to tell **yorick**. But, as **Polycarp** _already reminded you_ :dubious:, in \*Romer \*DOMA was ruled to be unable to meet that trivial standard nonetheless. And you are among the “everybody” here, including me, who cannot think of a way in which it \*could \*meet it, aren’t you? Now please try to follow the discussion; there’s a good lad. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 27, 2011, 12:45am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/169 "2011-02-27T00:45:38Z")
> [@ElvisL1ves](#): > > Please. :rolleyes: > > But it does have to be met, as you no doubt were about to tell **yorick**. But, as **Polycarp** _already reminded you_ :dubious:, in \*Romer \*DOMA was ruled to be unable to meet that trivial standard nonetheless. And you are among the “everybody” here, including me, who cannot think of a way in which it \*could \*meet it, aren’t you? > > Now please try to follow the discussion; there’s a good lad. Re-read post 153. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 27, 2011, 2:54am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/170 "2011-02-27T02:54:57Z")
You were wrong then, too. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 27, 2011, 3:04am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/171 "2011-02-27T03:04:02Z")
> [@Stratocaster](#): > > That’s funny. Everybody’s wrong but Elvis. > > It is really easy to meet that standard. It just is. Here’s [an example](http://en.wikipedia.org/wiki/Lawrence_v._Texas), an important aside in a case that did not specifically address SSM: > > > [@](#): > > > > O’Connor explicitly noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to “preserv[e] the traditional institution of marriage” and not simply based on the state’s dislike of homosexual persons. > > So, does an actual SC Justice acknowledging an acceptable rational basis argument for a DOMA-like law do the trick for you? It didn’t do the trick in California. From Perry v. Schwarzenegger: > [@](#): > > Proponents first argue that Proposition 8 is rational because it preserves: (1) “the traditional institution of marriage as the union of a man and a woman”; (2) “the traditional social and legal purposes, functions, and structure of marriage”; and (3) “the traditional meaning of marriage as it has always been defined in the English language.” Doc. # 605 at 12-13. These interests relate to maintaining the definition of marriage as the union of a man and a woman for its own sake. > > Tradition alone, however, cannot form a rational basis for a law. Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). The “ancient lineage” of a classification does not make it rational. Heller, 509 U.S. at 327, 113 S.Ct. 2637. Rather, the state must have an interest apart from the fact of the tradition itself. > > The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. See FF 26-27. California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman. FF 32. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life. > > The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender. See FF 32, 57. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 27, 2011, 3:58am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/172 "2011-02-27T03:58:05Z")
> [@ElvisL1ves](#): > > You were wrong then, too. Profound as always. That was not me but a quote from the case I cited. Now, I’m fully willing to admit I’m wrong but, I have to ask, cite? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 27, 2011, 4:56am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/173 "2011-02-27T04:56:24Z")
Lakai, as I said earlier, it’s possible to decide an EP case against the legislature on a rational basis, but that tends to be the exception, not the rule. The example you provided is not quite settled, though, and I think it may not withstand appeal (on a rational test argument). But, again, it’s always possible. And SCOTUS has not yet decided which level of scrutiny applies in such matters. The point is that Elvis’s assertion that it is self-evidently impossible to make a rational basis argument for DOMA is nonsense. The AG and the Obama administration, and SCOTUS members for that matter (I provided Elvis an example of a former and an existing SCOTUS justice, which he chose to ignore, using that same tired, condescending shtick), have already indicated as such. The current administration has done so explicitly; the SCOTUS members tipped their hands without actually ruling yet. The definition of the standard and historical precedent demonstrate that it’s designed to be an easy standard (and I think it should be). yorick73 provided additional evidence that it is a difficult task to make a rational basis challenge (which Justice Elvis summarily dismissed). Anyway, the assertion that there’s no way to make a rational basis argument is silly. It’s Elvis saying _he_ wouldn’t accept any such argument. And lest it get lost somehow, I don’t think DOMA will ultimately pass constitutional muster, but I think it will be because a greater level of scrutiny will be applied. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [February 27, 2011, 5:52am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/174 "2011-02-27T05:52:40Z")
Ok **Stratocaster** , it looks like I completely agree with you. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 27, 2011, 2:44pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/175 "2011-02-27T14:44:48Z")
> [@Stratocaster](#): > > And lest it get lost somehow, I don’t think DOMA will ultimately pass constitutional muster, but I think it will be because a greater level of scrutiny will be applied. Exactly. It’s certainly possible for it be struck down on a rational basis test, but I wouldn’t bet on it, and a lawyer would be a fool to try and do so at the SCOTUS level. Bump the level of scrutiny up to intermediate, and DOMA is toast. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 27, 2011, 5:11pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/176 "2011-02-27T17:11:20Z")
> [@yorick73](#): > > Now, I’m fully willing to admit I’m wrong but, I have to ask, cite? [Sheesh.](http://en.wikipedia.org/wiki/Rational_basis_review) ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 27, 2011, 9:35pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/177 "2011-02-27T21:35:06Z")
> [@ElvisL1ves](#): > > [Sheesh.](http://en.wikipedia.org/wiki/Rational_basis_review) You are gonna have to try a little harder. I’ll help you…from here: > **[Rational Basis Test](https://legal-dictionary.thefreedictionary.com/Rational+Basis+Test)** > > Definition of Rational Basis Test in the Legal Dictionary by The Free Dictionary > [@Link](#): > > In addition, the Court does not require a legislature to articulate its reasons for enacting a statute, holding that “\*t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature” (FCC v. Beach Communications, Inc., 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d 211 [1993]). Thus, the Court stated, a “legislative choice is **not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data** ” (FCC v. Beach Communications). This means that a court is permitted to find a rational basis for a law, even if it is one that was not articulated by the legislature. Bolding mine. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 27, 2011, 10:38pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/178 "2011-02-27T22:38:20Z")
You’ve discovered the “rational basis with teeth” test, one step up, not the rational basis requirement itself. The \*Romer \*ruling, as you should now know, is that not even that is met by DOMA. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 27, 2011, 11:17pm UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/179 "2011-02-27T23:17:19Z")
> [@yorick73](#): > > If you believe that politicizing Justice is bad in one instance then why not another? Because this isn’t politicizing the Justice Department. Like I said - more than once, I think - this is one of the things the department is supposed to do. > [@](#): > > Their job is also to defend the laws on the books. Would you like to support this with some kind of cite or argument? I’m not convinced by your assertion that this is something they are supposed to do. > [@](#): > > They moved the goalposts in order to circumvent the Legislature, the courts, and the states. No one is being circumvented. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 28, 2011, 12:52am UTC](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294/180 "2011-02-28T00:52:15Z")
> [@Marley23](#): > > Would you like to support this with some kind of cite or argument? I’m not convinced by your assertion that this is something they are supposed to do. Did you bother to read the quote from the current AG that I posted. Do you really still believe that the only purpose of Justice is law enforcement? Are you familiar with the position of Solicitor General. [Previous page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=8) [Next page](https://boards.straightdope.com/t/federal-judge-moves-towards-overturning-doma/568294.md?page=10)