# How would SCOTUS rule on California's Prop 8? With what consequences? **URL:** \ **Category:** Great Debates\ **Created:** [August 13, 2010, 6:28pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182 "2010-08-13T18:28:15Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [August 13, 2010, 10:05pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/21 "2010-08-13T22:05:02Z")
> [@alphaboi867](#): > > > [@Roderick\_Femm](#): > > > > …First question: With the current makeup of SCOTUS, what is the likely outcome? > > A 5/4 ruling. It could go either way, but it’ll be 5/4 vote. > > [QUOTE=Roderick Femm] > Second question: If Scotus upholds this decision, and on the same basis as the original decision, what are the implications for federal laws like DOMA, for DADT in the military, for federal agencies’ (e.g. IRS) recognition of such marriages, etc.?.. DOMA will be gone, totally, and completely gone. All federal agencies would need to recognize same-sex marriages on the same basis as opposite-sex marriages. So would all states and same-sex couples would be able to marry in all states. Even with all of the “deference” the courts traditionally give the military I don’t see how DADT could survive this. And even it it did it would lead to odd instances where same-sex spouses of servicemembers would be entitled to spousal benefits up until the point their spouses were discharged. [/QUOTE] That would be poetic justice, fighting to force their hateful, petty, dark aged, bigoted views on one state gets SSM spread all over the country. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [August 13, 2010, 10:58pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/22 "2010-08-13T22:58:05Z")
> [@Obsidian](#): > > > [@](#): > > > > For one thing, DOMA aside, the federal government doesn’t take a position on which marriages are valid – if the state said it’s a marriage, the fed takes their word for it. > > Isn’t Massachusetts suing the federal government on just this issue-- that the federal government can’t tell the state of MA that a marriage it declares valid to be not valid? Yep. Well, Massachusetts and a group of same-sex married couples and widowers, in two separate cases. Both were decided together, and declared section 3 of DOMA unconstitutional. As a matter of fact, final judgment was just entered today, and the federal government now has 60 days to appeal, should they so chose. I don’t know if same-sex couples in Connecticut, Vermont, New Hampshire, Iowa, or DC would be affected. ---
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [August 13, 2010, 11:16pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/23 "2010-08-13T23:16:27Z")
> [@Cliffy](#): > > > [@Obsidian](#): > > > > They go to the SC and lose. . . then it’s game over and they can’t stop gay people from getting married in Mississippi. > > Again, I very much doubt that the Supreme Court will uphold Perry. In fact, it’s the plaintiffs that are playing with fire, as the most likely outcome to my mind (assuming the Supreme Court ever hears the case, which it might not for collateral reasons) is that there is a Supreme Court ruling that the U.S. Constitution \*does not \*demand that states recognize same sex marriages.(snip)–Cliffy But this would not prevent states from individually recognizing SSM, would it? And in the fullness of time most of the states would probably do so. **Cliffy** , would you care to elaborate on what those collateral reasons for not hearing the case might be? [QUOTE=Obsidian] On the other hand, demographics are really not on their side, so it may be now or never. [/QUOTE] I disagree (with my rose-colored glasses on). Though I don’t have a cite handy, I recall reading more than once that the younger generations are fine with SSM (based on polling results) and don’t even see why it’s an issue. If this decision is overturned then we’re back to the piecemeal, one state at a time approach. A very interesting discussion, and I understood most of it, too, at least so far. Carry on. Roddy ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 13, 2010, 11:21pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/24 "2010-08-13T23:21:16Z")
> [@Roderick\_Femm](#): > > [QUOTE=Obsidian] > On the other hand, demographics are really not on their side, so it may be now or never. I disagree (with my rose-colored glasses on). Though I don’t have a cite handy, I recall reading more than once that the younger generations are fine with SSM (based on polling results) and don’t even see why it’s an issue. If this decision is overturned then we’re back to the piecemeal, one state at a time approach. [/QUOTE] I think he meant that the demographics are not on the \*anti-\*SSM crowd’s side - they know that in ten years the old Right Thinkers will be outnumbered by the young idiots and SSM will sweep the nation, bringing an end to reproduction as we know it. So if they want to stem this tide of sin and save civilization, they need to win a Supreme Court case while they still can and secure a place for Traditional Values in the highest level of law. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 13, 2010, 11:25pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/25 "2010-08-13T23:25:58Z")
> [@Cliffy](#): > > > [@Whack-a-Mole](#): > > > > Well, if the SCOTUS justices decide to be political and render decisions based on their feelings if gay sex is icky to them or not then I suppose you are right. > > :rolleyes: I think it likely the Court, if it gets there, will strike down [iPerry\* because they don’t like extending recognition of new rights or limiting the power of government to intervene in social issues. “Ickiness” isn’t a consideration – Kennedy in particular has ruled in favor of queers in important cases before. > > –Cliffy We have done numerous debates here on SSM and those opposing SSM are roundly defeated on any rationale they have put forward. It’s not even close. The recent decision in Perry smashes the Prop-8 supporters on every count. The Prop-8 people’s _own_ defense witnesses ended up helping the plaintiffs. Not to mention they could only muster two “expert” witnesses (“expert” in quotes because their expertise was seriously questionable). This was the _best_ they could manage. Hearkens back to the case on Intelligent Design several years ago. The judge there smashed ID because they utterly failed to prove their case and were wrong on every count (and that was a conservative judge). I would wager the people opposed to SSM are to a large extent the same folk who pushed ID. It is not a coincidence. These people are wrongheaded. We have Loving v. Virginia where the SCOTUS unanimously talked about marriage as a fundamental right and that denying it on racial grounds was utterly baseless. There is no rationale for it. You could, literally, put gender distinctions in place of race into that decision and it would make the same sense. For all the gnashing of teeth that SSM will ruin marriage the same complaints were made about interracial marriage. Society banged along just fine for the 50 or so years since the decision. Other countries that allow SSM have had zero problems. In short there is no rational reason to deny SSM. Those who do are bigots. So yeah, it comes down to prejudice (or finding it “icky” to be more colloquial) to refuse SSM. ---
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [August 13, 2010, 11:28pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/26 "2010-08-13T23:28:46Z")
> [@begbert2](#): > > > [@Roderick\_Femm](#): > > > > I disagree (with my rose-colored glasses on). Though I don’t have a cite handy, I recall reading more than once that the younger generations are fine with SSM (based on polling results) and don’t even see why it’s an issue. If this decision is overturned then we’re back to the piecemeal, one state at a time approach. > > I think he meant that the demographics are not on the \*anti-\*SSM crowd’s side - they know that in ten years the old Right Thinkers will be outnumbered by the young idiots and SSM will sweep the nation, bringing an end to reproduction as we know it. So if they want to stem this tide of sin and save civilization, they need to win a Supreme Court case while they still can and secure a place for Traditional Values in the highest level of law. Oh. I guess so. Oops. Never mind. Roddy ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 13, 2010, 11:31pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/27 "2010-08-13T23:31:07Z")
> [@Whack-a-Mole](#): > > I would wager the people opposed to SSM are to a large extent the same folk who pushed ID. It is not a coincidence. These people are wrongheaded. In my experience Mormons aren’t all that attached to Creationism or ID. Same tune, but different players. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [August 13, 2010, 11:59pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/28 "2010-08-13T23:59:28Z")
> [@begbert2](#): > > > [@Whack-a-Mole](#): > > > > I would wager the people opposed to SSM are to a large extent the same folk who pushed ID. It is not a coincidence. These people are wrongheaded. > > In my experience Mormons aren’t all that attached to Creationism or ID. Same tune, but different players. Same goes for the Catholic Church, which has been, as an institution, one of the major opponents of same-sex marriage rights in this part of the country, at least. Lay Catholics, I think, are actually more in favor than lay Protestants (I recall a recent survey of Latinos in California that showed a huge disparity between Catholics and Protestants, at least 40 points, IIRC). But the church hierarchy is adamantly opposed, and was probably the biggest player in getting Maine’s ballot proposition passed last year. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [August 14, 2010, 12:37pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/29 "2010-08-14T12:37:29Z")
> [@tim314](#): > > > [@NotreDame05](#): > > > > The right to marry someone of the same sex is not a fundamental right. > > I don’t think anyone is claiming that it is. Proponents of same sex marriage feel that the right of two consenting adults to marry is a fundamental right, regardless of the sex of the couple. > > That’s not a meaningless distinction. No one is saying “We want to be granted a new right”. They’re saying “We want to be granted the same right that opposite-sex couples already have”. I was referring to what the U.S. Supreme Court may say, not what the appellant or appellee are actually going to present as an argument to the U.S. Supreme Court. However, when you characterize the position as, “We want to be granted the same right that opposite sex couples already have,” then the question is what exactly are we discussing? Is it merely a “right of two consenting adults to marry?” No. It is more specific, it is the right of two consenting adults of the same sex to marry. The Court just may find this to be a fundamental right, but I doubt it. I think they protect this liberty interest in some other manner. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [August 14, 2010, 12:48pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/30 "2010-08-14T12:48:01Z")
> [@Whack-a-Mole](#): > > > [@Cliffy](#): > > > > I don’t think the Supreme Court, as currently constituted, will uphold this decision. Issues of jurisprudence aside, I don’t think of Kennedy as the type of guy who is willing to make that kind of sweeping change to the cultural landscape, even though he’s got an on-balance gay-friendly history. > > > > \ > > > > It is specifically about marriage, a fundamental right (so says Perry) protected under the Due Process Clause. > > Not sure I agree with you here. > > Well, if the SCOTUS justices decide to be political and render decisions based on their feelings if gay sex is icky to them or not then I suppose you are right. > > However, if they apply the law and simple, rational thinking there is no way they can fail to strike down DOMA and Prop-8 and all their ilk. > > Note it was not “Perry” that said marriage is a fundamental right. It was in Loving v. Virginia where it was established by the Supreme Court: > > > [@](#): > > > > Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State. > > > > SOURCE: [Loving v. Virginia, 388 U.S. 1 (1967)](http://supreme.justia.com/us/388/1/case.html) > > It is hard to see from that decision how SSM could be banned. > > Frankly whichever justices rule against SSM will find themselves on the wrong side of history and I think that group cares about such things. I doubt they want to be remembered in the history books alongside the likes of Justice Roger Taney. > > Perhaps Scalia, Thomas, Alito and Roberts won’t care and will show their partisan stripes but I think Kennedy may well see future history watching him so would rule to allow SSM. > > Of course no one can say for certain till it happens. The _Loving_ decision has enough contextual clues to suggest the right to marriage they were discussing is not as broad as suggested by the proponents of same sex marriage. This is not to suggest _Loving_ foreclosed any possibility its decision was indeed referencing a broader or general right to marry, such as a right to marry between two consenting adults, regardless of sex. Rather, there is enough contextual evidence in the opinion itself to refute the notion. Furthermore, the Court has sinced refined its fundamental rights doctrine and over the several years, if not more, they have demonstrated a proclivity for not recognizing liberty interests as fundamental rights. I think it is likely, however, the SSM group wins this case under a doctrine other than fundamental rights analysis. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 14, 2010, 2:36pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/31 "2010-08-14T14:36:43Z")
It really is discouraging to read these kinds of absolute statements: > [@Whack-a-Mole](#): > > Well, if the SCOTUS justices decide to be political and render decisions based on their feelings if gay sex is icky to them or not then I suppose you are right. > > However, if they apply the law and simple, rational thinking there is no way they can fail to strike down DOMA and Prop-8 and all their ilk. Don’t confuse the rational basis test with “simple, rational thinking.” If the Court applies that test, then the correct answer under the law is to uphold Prop 8. If the Court decides, as a matter of first impression, that SSM is owed at least intermediate scrutiny, then it will void Prop 8 and similar restrictions. There is one other option, which is possible but which I fervently hope will not happen. The Court could apply the “rational basis with teeth,” standard, which would also void Prop 8. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 14, 2010, 3:36pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/32 "2010-08-14T15:36:47Z")
> [@Bricker](#): > > It really is discouraging to read these kinds of absolute statements: > > > [@Whack-a-Mole](#): > > > > Well, if the SCOTUS justices decide to be political and render decisions based on their feelings if gay sex is icky to them or not then I suppose you are right. > > > > However, if they apply the law and simple, rational thinking there is no way they can fail to strike down DOMA and Prop-8 and all their ilk. > > Don’t confuse the rational basis test with “simple, rational thinking.” It is “absolute” because, while I am sure you are correct about the legal angle, I find it simply stunning that a “rational basis” test means just about anything. If the state can express a reason, any reason at all, no matter if it makes any sense whatsoever short of outright fantasy, they can do as they like. It boggles the mind that a “rational basis test” need not be actually, you know…rational. Is it a wonder why people have a dim view of attorneys? They pretend at a strict rule set but really it can be as arbitrary as they want it to be. Nevermind applying even something as simple as common sense. Wave a wand, “declare” something to be so with no regard to _reason_ and it is so. Easy-peasy, be home in time for dinner. ETA: “Rational basis” ought to have some teeth in general. As is it is downright absurd at how low a bar it is. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [August 14, 2010, 6:34pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/33 "2010-08-14T18:34:21Z")
> [@NotreDame05](#): > > I was referring to what the U.S. Supreme Court may say, not what the appellant or appellee are actually going to present as an argument to the U.S. Supreme Court. Fair enough. > [@](#): > > However, when you characterize the position as, “We want to be granted the same right that opposite sex couples already have,” then the question is what exactly are we discussing? Is it merely a “right of two consenting adults to marry?” No. It is more specific, it is the right of two consenting adults of the same sex to marry. It depends on your point of view I guess. I’m sure opponents of inter-racial marriage also said “Hey, blacks and whites both have the right to marry members of their own race, so how are anti-miscegenation laws discriminatory?” But from my perspective if the right to marry is only granted to you in such a way as prevents you from marrying the person you _want_ to marry, then it’s as good as not granting it at all. Sorry if this is too much of a hijack. As to the original question, I don’t have a clue how the Supreme Court will rule, but I agree with the poster who said it will inevitably be a 5-4 decision. ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [August 14, 2010, 6:44pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/34 "2010-08-14T18:44:23Z")
> [@Whack-a-Mole](#): > > I find it simply stunning that a “rational basis” test means just about anything. If the state can express a reason, any reason at all, no matter if it makes any sense whatsoever short of outright fantasy, they can do as they like. Yes, but remember that it’s the rational decision of the state’s democratically elected legislature—which is owed some deference under our system of separation of powers. Over the long run, we would not be happy with courts who reexamined every legislative act for logic or wisdom, rather than whether the act violates fundamental constitutional rights. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 14, 2010, 10:39pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/35 "2010-08-14T22:39:46Z")
> [@Mr\_Downtown](#): > > > [@Whack-a-Mole](#): > > > > I find it simply stunning that a “rational basis” test means just about anything. If the state can express a reason, any reason at all, no matter if it makes any sense whatsoever short of outright fantasy, they can do as they like. > > Yes, but remember that it’s the rational decision of the state’s democratically elected legislature—which is owed some deference under our system of separation of powers. Over the long run, we would not be happy with courts who reexamined every legislative act for logic or wisdom, rather than whether the act violates fundamental constitutional rights. Exactly. If the rational basis test meant what **Whack-a-Mole** wishes it to mean, inevitably courts would have to ask, “Does this law represent the best possible solution to the problem it’s trying to solve?” Because, after all, it would be irrational to enact a law that was less than the best solution, when the best solution exists. This would conceivably shift responsibility for approval and evaluation of every law to the courts. And that isn’t what we’re supposed to be about. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 14, 2010, 10:51pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/36 "2010-08-14T22:51:41Z")
> [@Bricker](#): > > > [@Mr\_Downtown](#): > > > > Yes, but remember that it’s the rational decision of the state’s democratically elected legislature—which is owed some deference under our system of separation of powers. Over the long run, we would not be happy with courts who reexamined every legislative act for logic or wisdom, rather than whether the act violates fundamental constitutional rights. > > Exactly. > > If the rational basis test meant what **Whack-a-Mole** wishes it to mean, inevitably courts would have to ask, “Does this law represent the best possible solution to the problem it’s trying to solve?” > > Because, after all, it would be irrational to enact a law that was less than the best solution, when the best solution exists. > > This would conceivably shift responsibility for approval and evaluation of every law to the courts. And that isn’t what we’re supposed to be about. Forget the “best solution”. The state is making an arbitrary distinction between two groups of people and denying one group rights another possesses. Is there a rational reason for that distinction? No. Hence, there is zero reason for the state to discriminate. No need for a “best solution”. Maybe there is a better system than marriage as recognized by the state but no one is asking to try for that. A group is merely asking for the same rights _others already possess and which the government is presumably ok with_. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 14, 2010, 11:05pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/37 "2010-08-14T23:05:54Z")
ETA (missed edit window): And yeah, it would seem in any rational review of denying SSM to be a violation of fundamental constitutional rights. Rights defines as fundamental unanimously by the SCOTUS in Loving v. Virginia. Marriage is also defined as a fundamental right by Prop-8 supporters as well as detractors (probably the only place they do agree) so there is no real debate on that topic. But in **Bricker’s** world denying a _fundamental right_ can be done with nothing more than, “Cuz we said so!” Any reason for that? Nope…just cuz and that should be enough. Who here is ok with that? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 14, 2010, 11:12pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/38 "2010-08-14T23:12:26Z")
But again, using the rational basis test, the state probably does have a reason to discriminate. That’s the whole point of the rational basis test; to let the state discriminate against groups of people without articulating a good reason they should be allowed to. If you’re saying that gays shouldn’t be denied rights straight people have, then you’re saying that discrimination based on sexual orientation should be held to a higher test than rational basis: either strict scrutiny, intermediate scrutiny, or the mysterious “rational basis with teeth” standard that **Bricker** dislikes so much. I don’t think you’re alone in saying that…most of the people in this thread agree with you that it should. But just realize that it will require them to say that. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 14, 2010, 11:20pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/39 "2010-08-14T23:20:31Z")
> [@Whack-a-Mole](#): > > But in **Bricker’s** world denying a _fundamental right_ can be done with nothing more than, “Cuz we said so!” Just for the record, **Bricker** didn’t say that. Any law that infringes a fundamental right is applicable to strict scrutiny classification, and I’m pretty sure he knows that. I don’t think the Supreme Court is going to say that a gay marriage ban does infringe a fundamental right, though. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [August 14, 2010, 11:46pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/40 "2010-08-14T23:46:29Z")
> [@Whack-a-Mole](#): > > Marriage is also defined as a fundamental right by Prop-8 supporters as well as detractors (probably the only place they do agree) so there is no real debate on that topic. > > But in **Bricker’s** world denying a _fundamental right_ can be done with nothing more than, “Cuz we said so!” IANAL, but I believe you’re confusing the argument under the Equal Protection clause with the argument under the Due Process clause. Calling marriage a “fundamental right” is the Due Process argument. To deprive someone of a fundamental right is to deprive them of their liberty without due process. The Supreme Court, as currently composed, is, IMHO, likely to rule that same-sex marriage is not a fundamental right. Scalia will probably write an opinion stating so outright. I disagree, and Judge Walker’s decision disagrees, but I don’t see the Due Process argument winning the day at the Supreme Court. The question of which level of scrutiny to use is part of the argument using the Equal Protection clause. Rational basis is a very low bar, as **Bricker** often notes. Strict scrutiny is a very high bar. Intermediate scrutiny somewhere in between. Currently, the Supreme Court has not found that sexual orientation requires anything other than rational basis review, but has also struck down laws that seemingly exceed the very low bar that rational basis sets. This creates a bit of confusion. Also, anyone who accepts the argument that the right being denied by Proposition 8 is not a right to same-sex marriage, but rather the right of gay people to marry, is likely to also see the argument that sexual orientation discrimination ought to be treated like gender discrimination (or stricter). Thus, I can see a court deciding that Prop 8 violates the Equal Protection clause _and_ the Due Process clause, or that it violates the Equal Protection clause _but not_ the Due Process clause, or that it violates neither clause, but I don’t really see a court deciding that it violates the Due Process clause _but not_ the Equal Protection clause. Just as a matter of the internal consistency of their positions, not as a matter of what I believe to be the correct interpretation of the law. [Previous page](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182.md?page=1) [Next page](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182.md?page=3)