Good point. I am operating under the assumption that homosexuals, similar to heterosexuals like me, don’t choose their orientation. If that’s not accepted by the court, maybe it’s not a slam dunk. Feels like the time is ripe for SCOTUS to shift on this though.
Diogenes, you are aware, I assume, that EP cases hinge on the level of scrutiny the court determines is appropriate. Endlessly repeating the text of the 14th isn’t an argument, not if the court determines only a rational basis scrutiny is necessary (I obviously don’t agree with that). Eighteen year olds are not allowed to drink, and there’s no 14th amendment concern. Why? Because one could hypothesize a rational basis for the law (an exceedingly easy hurdle) and because the group restricted isn’t a suspect class. You were essentially asked for higher court precedents that, for example, recognized homosexuals as a suspect class. Responding with the text of the 14th amendment doesn’t do the trick.
The rational basis test is exceedingly easy to pass. From here (emphasis added):
Arguing against a rational basis is generally a non-starter in an EP case. A suspect class (which I think is in play here) is a different story. And “rational basis” does NOT equal “a reason I find compelling or just.” It is a REALLY easy test to pass. The legislature’s case is made for them by the judiciary. If they can speculate a remote societal benefit (and it needn’t be the greatest benefit or optimum result), they defer to the legislature. The legislature doesn’t even need to argue there’s a rational basis.
These threads often get derailed by people who argue that the rational basis test isn’t met, when what they really mean is that they think it’s a shitty threshold, and there ought to be a better way to evaluate EP cases. I’m not arguing that the rational basis test is good or bad. But it is what it is, and them’s the rules they apply.
“This is difficult to prove, because a court can usually find some reasonable ground for sustaining the constitutionality of the challenged law or policy.”
At the risk of getting in over my head here, this point was made by the court in the case Holder cited in his letter to Boehner (Lofton v. Secretary of the Dep’t of Children & Family Servs.). In that case the judges noted that all of its sister circuits (4th, 5th,6th, 7th, D.C., Federal., 10th, and two by the 9th Circuit) declined to treat homosexuals as a suspect class…as did the 11th circuit in that case. Note that two of those decisions are from the 9th circuit.
Now, the thing I don’t get is Holder seems to be requiring that DoMA be defended under a heightened standard of review. He claims he is unable to meet the criteria that he, not a single circuit court, demands, so he won’t defend the law. Does anybody else see a problem with this? Maybe I’m missing something here but this seems to be nothing more than inventing an excuse not to defend a law that Holder and Obama disagree with.
I’m sure that Obama and Holder actually believe that homosexuals deserve to be treated as a suspect class under the law. That’s a different question from whether they believe there is no rational argument they can make to the 2nd Circuit that homosexuals shouldn’t be treated as a suspect class.
In fact, if you read Holder’s letter to Congress, it’s clear that Holder believes that there are rational arguments to be made, but he’s not going to make them because he and the President do not believe any of them are reasonable, and because they both think the law is unconstitutional.
Romer v. Evans was decided on rational basis grounds – and found Colorado’s Amendment II unconstitutional because there were no rational grounds adduced. Now apply the logic of that decision here – what rational basis is there for deeming that legal same-sex marriages are to be treated differe3ntly than all other “public acts, records, and judicial proceedings” of other states.
And the “public policy exception” is as much a penumbral concept as the “right to privacy” – perhaps even more so, because the latter is adduced from a group of things the constitution actually does say, while the former is completely invented by judges.
So now they are in the awkward position of enforcing a law that Justice has deemed unconstitutional.
If you believe that politicizing Justice is bad in one instance then why not another?
Their job is also to defend the laws on the books.
That’s surprising. Holder said as much in his letter to Boehner:
They moved the goalposts in order to circumvent the Legislature, the courts, and the states. They are trying to force the courts to use a more heightened standard of scrutiny. This is in disagreement with 9 circuit courts who have all used the rational basis standard in cases involving gay rights.
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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. It also seems that Holder is insisting that they be treated as a suspect class. From your link:
You’re assuming Holder thinks there is no rational argument that can be made. He never uses the word rational in his letter, and doesn’t imply that he thinks no rational argument can be made.
Read what he said again:
He makes a distinction between “professionally responsible” arguments and “reasonable” arguments. Just because other Circuit Courts have a different view on the matter doesn’t mean Holder should think their arguments are reasonable.
What he means by “reasonable” isn’t clear. But it appears that it doesn’t cover arguments for which there is binding precedent. But since there is no binding precedent on whether homosexuals are a suspect class in the 2nd Circuit and Holder doesn’t consider all the other arguments in defense of the law reasonable (despite their approval in sister courts), Holder believes the DOJ should not defend the law.
From what I read Justice does not need to give any basis. The party attacking the law must “negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.” That is from Lofton v. Secretary of the Dep’t of Children & Family Servs.
Gill v OPM and Mass. v US Department of Health and Human Services did (those are the ones the feds are appealing). The ones the feds aren’t defending are two later ones…Pederson v OPM and Windsor v US. Those are the two cases the feds announced they weren’t going to try to defend.
Okay…I think I get your point. This all seems deliberately murky. Of course I am no lawyer and this may very well be common practice. It just seems to me they are looking for any reason not to defend the law.
Yes, that’s right. That’s not to say that SCOTUS couldn’t possibly rule this unconstitutional on a rational test basis, but if they do, that’s the exception, not the rule. I think that’s the wrong basis. I think homosexuals are a suspect class, and DOMA consequently subject to a higher level of scrutiny. So does Obama and the AG:
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. Again, it is an exceedingly permissive standard. SmartAlecCat, Misty Irons has crafted a straw man, since there is no such need to mount ANY defense of a law’s rational basis, let alone getting over the hurdle she has created.
If SCOTUS does go the rational basis route, DOMA’s constitutionality will be MUCH easier to establish. Again, I believe such a ruling would be contradictory to their own protocols.
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.