# 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:** 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 17, 2010, 9:39pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/141 "2010-08-17T21:39:10Z")
> [@Bricker](#): > > Whoa. Full stop. > > Here’s where our disconnect is, I think. > > You seem to believe – and I welcome correction or expansion of the point here – that the court’s job is, or that it should be, to arrive at a just outcome. That the court should assess all the factors, weigh them, and then produce a just outcome. > > But if the courts had the power to do that, no matter what the law says, then the courts are the most powerful of the three branches of government. A judge who has the power to disregard the law and craft his own “just” solution is a king. > > I’m not “fine” with unjust results. But I accept unjust results as the price of living in a society where my own ideas of justice do not always win the day. I’ll repeat: What is expansive or fuzzy about “…nor deny to any person within its jurisdiction the equal protection of the laws”? How is a judge doing that ignoring the law? Seems to me denying SSM, considering there is no rationale or state interest in doing so, is evading the law. Yes you could say the state discriminates on age with no more than “rational basis” but when they do so they can articulate a reasonable position for doing that. Denying SSM they can’t. We just had a whole court case where the defendants put forth the very best case they could and they utterly failed on this count. Can the court just ignore and and declare there is no discrimination? Sure. That would however not only be unjust but clearly fly in the face of reason, logic and what the law actually says as regards equal protection. > [@](#): > > Imagine an ardently pro-life judge, whose firm conviction is that abortion is murder. Might he not, if given the chance, find that the Fourteenth Amendment’s guarantee not to “…deprive any person of life, liberty, or property, without due process of law…” applies to unborn persons as well? > > What’s he doing that is different than what you’re urging? Naturally, you don’t agree with his result, but isn’t he doing the same thing you want to see happen – imposing a just result as he sees it? > > I am ardently pro-life, and I agree that abortion is wrong. Yet I would be appalled at the judge who reached such a conclusion… not because I disagree with the result of ending abortion, but because I believe a judge or group of judges should not have the power to enact changes like that, no matter hos just they think those changes are. At least there are actual reasons to take a position on either side of that. Many disagree vehemently with the other side but they can articulate a reason and logic for their position. That cannot be done in SSM. Further, abortion is different in an important respect from SSM. With abortion you are balancing the rights of the mother against the rights of the fetus (assuming you think the fetus has rights). For SSM there is no balancing of rights involved. No one else is harmed if George and Greg get married. Further, allowing George and Greg to marry (in a legal sense) is not inventing a new right. It is merely extending a right already there to them as well. Equal protection and all that. ---
**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 17, 2010, 9:43pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/142 "2010-08-17T21:43:43Z")
> [@Captain\_Amazing](#): > > > [@Really\_Not\_All\_That\_Bright](#): > > > > Unless your definition of “rational” is “not totally frivolous”. > > That’s the definition of “rational” in the rational basis test. An appallingly low bar to set but as it happens in Perry the defendants could not express a non-frivolous reason to deny SSM. They failed dramatically and utterly on that count. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 17, 2010, 9:50pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/143 "2010-08-17T21:50:22Z")
> [@Whack-a-Mole](#): > > Seems to me denying SSM, considering there is no rationale or state interest in doing so, is evading the law. > > Yes you could say the state discriminates on age with no more than “rational basis” but when they do so they can articulate a reasonable position for doing that. Denying SSM they can’t. We just had a whole court case where the defendants put forth the very best case they could and they utterly failed on this count. > > Can the court just ignore and and declare there is no discrimination? Sure. That would however not only be unjust but clearly fly in the face of reason, logic and what the law actually says as regards equal protection. So, simply because you disagree with the position taken it makes it not rational? Or just because you don’t think that the government should be in the business of marriage, that it has no legitimate interest there? Government have regulated sexual morality and conduct since the dawn of time. The fact that since only recently the idea that government should stay out of these affair has come into acceptance is almost absolute proof that such things are NOT fundamental rights that are implicit in ordered liberty. As such they deserve no 14th amendment protection. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [August 17, 2010, 10:01pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/144 "2010-08-17T22:01:52Z")
> [@Whack-a-Mole](#): > > I’ll repeat: > > What is expansive or fuzzy about “…nor deny to any person within its jurisdiction the equal protection of the laws”? > > How is a judge doing that ignoring the law? You can feel however you like about the issue, and you can feel however you like about the law as regards this issue, but as long as you insist on using legal terms in ways that suggest that you don’t really get how they’re actually applied, you’re going to keep getting the same responses from for instance **Bricker**. And it won’t be because **Bricker** is bigoted or because **Bricker** is against gay marriage or because he’s anything at all except, in this very narrow corridor we’re in, correct about the law. And these conversations, over several threads now, get very bogged down and very frustrating to read, because there are things that are very important about each side of this argument, and they’re getting confused and scattered. And that, I think, is bad news down the line to whatever extent it’s a reflection of the state of society on the subject, because it’s an important conversation. I am 100% in favor of gay marriage, and I’ve put my money where my mouth is as far as that’s concerned. I’m not on the fence or in between. I think the campaign to prevent gay marriage from immediately realizing full legal status is one driven by nothing but hatred and ignorance. I also acknowledge that you can’t talk about “equal protection of the law” unless you’re going to talk about in the same terms that the Supreme Court is almost entirely obligated to talk about it. And in that context, the objections you’re raising in this thread, and many others are raising in many threads, are missing the mark. Because rational basis does mean something, and it’s something different from “totally arbitrary” or “pretend” or “frivolous.” You keep saying you know what the words mean, and then acting as if you don’t. And as a result **Bricker** keeps arguing with you. And as a result of that, what I consider the fundamental reason this is worth talking about is getting lost, that being that you and **Bricker** agree about what outcome is appropriate here. I want that outcome to happen. The law has to _change_ in order to get there. There are rules by which, in order to afford it the full gravity it deserves and in order for it to be the kind of emphatic precedent I want that it to be, the Supreme Court has to play. And one of those rules is the one about rational basis review, which means that the Court has to apply rational basis the same way it always does, a part of which application is the simple fact that all kinds of discrimination are allowed all the time and up until right this very fucking second, sexual orientation only gets rational basis. I think, rather than freaking out about how _stupid_ rational basis review is as a concept, and declaring that obviously there’s no rational basis here, it would be a better idea to consider whether maybe this isn’t the kind of situation where we’re comfortable with rational basis in the first place. Because your kind of “rational basis” review is simply untenable and as such can be immediately dismissed. Don’t you not want that to happen? ---
**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 17, 2010, 10:02pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/145 "2010-08-17T22:02:31Z")
> [@jtgain](#): > > So, simply because you disagree with the position taken it makes it not rational? Or just because you don’t think that the government should be in the business of marriage, that it has no legitimate interest there? > > Government have regulated sexual morality and conduct since the dawn of time. > > The fact that since only recently the idea that government should stay out of these affair has come into acceptance is almost absolute proof that such things are NOT fundamental rights that are implicit in ordered liberty. As such they deserve no 14th amendment protection. You said you did not want to argue your rationales listed a little up thread. We can if you want or you can look at numerous other threads on this subject on the SDMB where your “reasons” are thoroughly debunked. We also have Perry to look to where the Prop-8 supporters tried very hard to do what you put here and they failed so miserably their own witnesses ended up supporting the plaintiff’s case. Look at the published decision. If you have issue with the finding of fact in Perry please spell it out here so we can discuss it. Till you can manage that you and the Prop-8 supporters do not have a lick of reason or logic on your side. As for the government legislating sexual morality I bet you’d scream bloody murder if the state imposed laws on what you could do in your bedroom with your consenting wife (or female partner as the case may be). What is the state said went back to a more puritanical time and said you and your wife had to sleep in separate beds and sex was only for procreation. You each get jammies with a slit and you do the deed as efficiently as possible and are done. Or how about you can’t even have sex. You get to jerk off in a cup and she gets a turkey baster. You ok with that? If the government went there you’d say that was entirely appropriate for the government to do? The majority spoke so you’ll just have to deal with it? Somehow I doubt you’d be ok with that. So, equal protection again, why is it the government’s role and ok to tell George and Greg what they can consensually do in the bedroom? ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [August 17, 2010, 10:03pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/146 "2010-08-17T22:03:56Z")
> [@jtgain](#): > > Also, many have argued that there is zero rational basis for keeping SSM illegal. Are some of you so blind that you see any point of view that is contrary to your own as irrational? Actually in this case I think most of them are evil, not irrational (or at least, not just irrational). But “I just wanna hurt those queers, your honor” doesn’t come across well in most courtrooms. > [@jtgain](#): > > Here is the argument against legal SSM: > > 1. It has been historically a nullity and it would be introducing into society an element that has not been tried or shown to work. It would be a step that is against the wishes of a majority of Californians, one of the most liberal states in the country, and against the wishes of voters in 30+ states that have passed laws or state constitutional amendments. And every single person who voted that way is bigoted scum. Just like all the people who used to oppose interracial marriage. Which, just like outlawing SSM had a long legal tradition; as did many other evils now outlawed. So no, that argument doesn’t work. And we live a a republic with laws protecting the rights of unpopular groups, not under mob rule. So if the majority of people want to impose their bigotry on the country, tough. > [@jtgain](#): > > 1. A state may hold that the traditional family unit, a monogamous relationship between a man and a woman is the proper vehicle for procreation and raising children. These relationships have been historically tested as being viable and healthy. To expand on this type of relationship may have the effect of harming the traditional institution of marriage. Ridiculous nonsense. Marriage isn’t about reproduction. Nor do I believe for one second that people making that argument are anything but liars, or they’d be trying just as hard to ban the marriage of sterile people and break up childless couples. But they don’t; because the one, the only motive for opposing SSM is bigotry. > [@jtgain](#): > > 1. By recognizing more marriages, small businesses that provide health benefits to families will see their costs increase, possibly causing more companies to stop providing these benefits or increase unemployment. Tough; by that “logic” all marriage should be outlawed. ---
**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 17, 2010, 10:07pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/147 "2010-08-17T22:07:41Z")
> [@Jimmy\_Chitwood](#): > > You can feel however you like about the issue, and you can feel however you like about the law as regards this issue, but as long as you insist on using legal terms in ways that suggest that you don’t really get how they’re actually applied, you’re going to keep getting the same responses from for instance **Bricker**. And it won’t be because **Bricker** is bigoted or because **Bricker** is against gay marriage or because he’s anything at all except, in this very narrow corridor we’re in, correct about the law. And these conversations, over several threads now, get very bogged down and very frustrating to read, because there are things that are very important about each side of this argument, and they’re getting confused and scattered. And that, I think, is bad news down the line to whatever extent it’s a reflection of the state of society on the subject, because it’s an important conversation. > > \ > > I also acknowledge that you can’t talk about “equal protection of the law” unless you’re going to talk about in the same terms that the Supreme Court is almost entirely obligated to talk about it. And in that context, the objections you’re raising in this thread, and many others are raising in many threads, are missing the mark. Because rational basis does mean something, and it’s something different from “totally arbitrary” or “pretend” or “frivolous.” You keep saying you know what the words mean, and then acting as if you don’t. And as a result **Bricker** keeps arguing with you. And as a result of that, what I consider the fundamental reason this is worth talking about is getting lost, that being that you and **Bricker** agree about what outcome is appropriate here. Yeah except what you are asking has been done. I applied the reasoning the courts use in [this thread](http://boards.straightdope.com/sdmb/showthread.php?t=491784) a couple years ago. Judge Walker applied it in _Perry v. Schwarzenegger_ at far greater length and detail than I did and found not even a rational basis with no need to apply a higher level of scrutiny. I am hearing what **Bricker** is saying. I merely object that no reason whatsoever is still sufficient reason to deny a right to a group. ---
**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 17, 2010, 10:17pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/148 "2010-08-17T22:17:16Z")
> [@jtgain](#): > > Government have regulated sexual morality and conduct since the dawn of time. Here’s a government, of sorts, regulating morality in action (very recently). > [@](#): > > KABUL, Afghanistan — The Taliban on Sunday ordered their first public executions by stoning since their fall from power nine years ago, killing a young couple who had eloped, according to Afghan officials and a witness. > > \ > > Mr. Khan said that as a Taliban mullah prepared to read the judgment of a religious court, the lovers, a 25-year-old man named Khayyam and a 19-year-old woman named Siddiqa, defiantly confessed in public to their relationship. “They said, ‘We love each other no matter what happens,’ ” Mr. Khan said. > > \ > > Mr. Khan estimated that about 200 villagers participated in the executions, including Khayyam’s father and brother, and Siddiqa’s brother, as well as other relatives, with a larger crowd of onlookers who did not take part. > > “People were very happy seeing this,” Mr. Khan maintained, saying the crowd was festive and cheered during the stoning. The couple, he said, “did a bad thing.” > > SOURCE: [http://www.nytimes.com/2010/08/17/world/asia/17stoning.html?emc=eta1](http://www.nytimes.com/2010/08/17/world/asia/17stoning.html?emc=eta1) So, under your theory, if the US went to this extreme it would be by the will of the people and you’d be ok with this. Is that correct? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 17, 2010, 10:22pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/149 "2010-08-17T22:22:58Z")
> [@Whack-a-Mole](#): > > So, under your theory, if the US went to this extreme it would be by the will of the people and you’d be ok with this. Is that correct? So Congress passes by two-thirds majority Amendment XVIII, which reads: Sec. 1: Nothing in this Constitution shall be construed to forbid the United States, or any State, from imposing a penalty of death for the crime of adultery. Sec 2. Nothing in this Constitution shall be construed to forbid the United States, or any State, from using stoning by crowd to administer the penalty of death. And three-fourths of the states ratify this amendment. Is it your theory that a judge should still be able to forbid death by stoning as a punishment for adultery? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 17, 2010, 10:33pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/150 "2010-08-17T22:33:38Z")
The [Ninth Circuit has](http://www.scotusblog.com/wp-content/uploads/2010/08/9th-CA-order-Imperial-County-8-17-10.pdf) accepted the appeal of Imperial County. Local officials in Imperial County, California, sought leave to intervene at trial; Judge Walker denied their motion. The county seeks to defend Proposition 8. If the Ninth Circuit is persuaded that Imperial County, California, has an interest in defending the law of California that confers Art. III standing, then the standing issue for the Alliance Defense Fund et al is of no importance. The briefing schedule remains the same. ---
**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 17, 2010, 11:48pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/151 "2010-08-17T23:48:52Z")
That does settle the standing issue, because I can’t see that the Ninth would say that Imperial County doesn’t have standing. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [August 18, 2010, 12:33am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/152 "2010-08-18T00:33:39Z")
> [@jtgain](#): > > The fact that since only recently the idea that government should stay out of these affair has come into acceptance is almost absolute proof that such things are NOT fundamental rights that are implicit in ordered liberty. As such they deserve no 14th amendment protection. You can keep repeating this, but it doesn’t make it true. It’s not “almost absolute proof,” it’s merely evidence. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 18, 2010, 12:49am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/153 "2010-08-18T00:49:33Z")
> [@Bricker](#): > > > [@Saint\_Cad](#): > > > > My argument against anti-SSM partisans who claim that it is about having children is that by that logic, sterile people should be banned from getting married. Sadly, I have never heard that counterarguement in court. > > Have you ever seen that argument in one of these threads? > > Have you ever seen the response to that argument from anyone who can explain the process of rational basis analysis? > > Because, you know, it’s been mentioned once or twice. I have heard it NUMEROUS times on talkradio by anti-SSM people, including some lawyers commenting on Prop8. But even better, I saw it used by the State of Washington’s AG when the lawsuit up there on SSM was before the state Supreme Court. And guess what. The justices held the “married couples should be able to make babies” argument as a valid state interest. ---
**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 18, 2010, 1:33am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/154 "2010-08-18T01:33:40Z")
> [@Saint\_Cad](#): > > But even better, I saw it used by the State of Washington’s AG when the lawsuit up there on SSM was before the state Supreme Court. And guess what. The justices held the “married couples should be able to make babies” argument as a valid state interest. So your complaint is that the marriage law isn’t narrowly tailored enough? Because lets say in our hypothetical, the legislature wants to promote babymaking. So they pass a law saying, “A man can marry a woman, and they’ll get all these benefits, because these benefits will have the effect of making it easier for them to have and raise kids.” That law also benefits the sterile couple, or the couple that’s childless by choice, not necessarily intentionally, but just because the law is widely enough written than any man and any woman can get married and enjoy the benefits, even they can’t have children. They’re unintended beneficiaries. The fact that they are, though, doesn’t change the fact that the reason behind passing the law was to encourage babymaking. Another example would be that Bush tax refund/advance that the IRS gave out in 2008. Remember that? Bush/the Congress gave every taxpayer who made less than a certain amount $600. The purpose of the law was so that people would spend the money and thereby give a quick stimulus to the economy. Everybody who qualified got that money, though. Even if you were going to take the money and put it in the bank, you got the money. You benefited from the law, even though in your case, the law didn’t serve its purpose. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 18, 2010, 1:35am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/155 "2010-08-18T01:35:36Z")
> [@Saint\_Cad](#): > > > [@Bricker](#): > > > > Have you ever seen that argument in one of these threads? > > > > Have you ever seen the response to that argument from anyone who can explain the process of rational basis analysis? > > > > Because, you know, it’s been mentioned once or twice. > > I have heard it NUMEROUS times on talkradio by anti-SSM people, including some lawyers commenting on Prop8. > > But even better, I saw it used by the State of Washington’s AG when the lawsuit up there on SSM was before the state Supreme Court. And guess what. The justices held the “married couples should be able to make babies” argument as a valid state interest. As well they should, since under rational basis analysis, that is a correct conclusion. > [@](#): > > My argument against anti-SSM partisans who claim that it is about having children is that by that logic, sterile people should be banned from getting married. Sadly, I have never heard that counterarguement in court. Nor would you, because under rational basis analysis we do not care if there happens to be a better or more efficient way of advancing the apparent state interest. The mere fact that there’s some better way of using marriage to encourage procreation does not have any relevance at all to rational basis analysis. ---
**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 18, 2010, 1:49am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/156 "2010-08-18T01:49:37Z")
> [@Bricker](#): > > > [@Whack-a-Mole](#): > > > > So, under your theory, if the US went to this extreme it would be by the will of the people and you’d be ok with this. Is that correct? > > So Congress passes by two-thirds majority Amendment XVIII, which reads: > > Sec. 1: Nothing in this Constitution shall be construed to forbid the United States, or any State, from imposing a penalty of death for the crime of adultery. > > Sec 2. Nothing in this Constitution shall be construed to forbid the United States, or any State, from using stoning by crowd to administer the penalty of death. > > And three-fourths of the states ratify this amendment. > > Is it your theory that a judge should still be able to forbid death by stoning as a punishment for adultery? If that is the law then the seems clear and the judge must apply it. The 14th amendment is also the law and the judges should apply it. “…nor deny to any person within its jurisdiction the equal protection of the laws.” “Any person” includes homosexuals you know. I doubt even Scalia could make a case that “any person” really means these people and not those people. Where in all of this have I suggested the judges ignore the law? Indeed I am saying if they follow the law that is written they are inexorably led to allow SSM. Judge Walker did the heavy lifting for me. He did not apply a higher level of scrutiny. He applied the lowest available, the easiest bar for the Prop-8 supporters to cross and found them lacking even there. If you have issue with Walker’s decision and feel it was decided in error please spell it out for us here. ---
**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 18, 2010, 1:52am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/157 "2010-08-18T01:52:50Z")
> [@Bricker](#): > > Nor would you, because under rational basis analysis we do not care if there happens to be a better or more efficient way of advancing the apparent state interest. The mere fact that there’s some better way of using marriage to encourage procreation does not have any relevance at all to rational basis analysis. Well I wish they would try because if the state interest is to encourage procreation then allowing SSM is in line with that interest. Same-sex couples are far less likely to have children without the government support/protections marriage bestows upon them. If the government wants more babies then SSM is absolutely in the state’s interest to see happen. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 18, 2010, 2:09am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/158 "2010-08-18T02:09:56Z")
> [@Whack-a-Mole](#): > > > [@bricker](#): > > > > Is it your theory that a judge should still be able to forbid death by stoning as a punishment for adultery? > > If that is the law then the seems clear and the judge must apply it. But if you feel that way, why did you ask **jtgain** , in reference to stoning: > [@](#): > > So, under your theory, if the US went to this extreme it would be by the will of the people and you’d be ok with this. Is that correct? > [@](#): > > The 14th amendment is also the law and the judges should apply it. “…nor deny to any person within its jurisdiction the equal protection of the laws.” > > “Any person” includes homosexuals you know. I doubt even Scalia could make a case that “any person” really means these people and not those people. Yes, it does. But “any person” also includes kids. And you don’t mind when the laws are applied unequally to kids. “The law” includes the text and the caselaw that has shaped the text. And that caselaw has created a rational basis analysis test. > [@](#): > > Where in all of this have I suggested the judges ignore the law? Here, talking to **jtgain** : > [@](#): > > So, under your theory, if the US went to this extreme it would be by the will of the people and you’d be ok with this. Is that correct? > [@](#): > > Judge Walker did the heavy lifting for me. He did not apply a higher level of scrutiny. He applied the lowest available, the easiest bar for the Prop-8 supporters to cross and found them lacking even there. > > If you have issue with Walker’s decision and feel it was decided in error please spell it out for us here. Judge Walker followed the lesson of Romer – claiming to apply rational basis but actually using “rational basis with teeth.” If there is truly to be a fourth level of scrutiny, then the courts should clearly delineate its existence and use. That’s fine, although needlessly complicated. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 18, 2010, 4:56am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/159 "2010-08-18T04:56:28Z")
> [@jtgain](#): > > > [@Whack-a-Mole](#): > > > > Seems to me denying SSM, considering there is no rationale or state interest in doing so, is evading the law. > > > > Yes you could say the state discriminates on age with no more than “rational basis” but when they do so they can articulate a reasonable position for doing that. Denying SSM they can’t. We just had a whole court case where the defendants put forth the very best case they could and they utterly failed on this count. > > > > Can the court just ignore and and declare there is no discrimination? Sure. That would however not only be unjust but clearly fly in the face of reason, logic and what the law actually says as regards equal protection. > > So, simply because you disagree with the position taken it makes it not rational? Or just because you don’t think that the government should be in the business of marriage, that it has no legitimate interest there? > > Government have regulated sexual morality and conduct since the dawn of time. > > The fact that since only recently the idea that government should stay out of these affair has come into acceptance is almost absolute proof that such things are NOT fundamental rights that are implicit in ordered liberty. As such they deserve no 14th amendment protection. With all due respect, **JT** , please remove your head from other people’s crotches long enough to observe that the law in question does not regulate sexual morality and conduct. It regulates marriage. While sex is a nearly universal concomitant of marriage, it does not equal it. I presume that it is not true that the only reason you married Mrs. Gain and the only attention you pay to her is that you wanted, and want, a permanent fuck buddy. Even we liberal scum who “fail to defend the sanctity of marriage” have a higher view of it than that. Gays already have the right to engage in sex with each other, from _Lawrence_. This is something different – the right to contract a valid marriage and have it legally recognized, and to participate equally i the privileges and responsibilities that that entails. It’s not about sex. Conservative Christians who endeavor to make it about sex show their true valuation of marriage – and it’s not pretty. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [August 18, 2010, 5:51am UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/160 "2010-08-18T05:51:36Z")
> [@Bricker](#): > > The [Ninth Circuit has](http://www.scotusblog.com/wp-content/uploads/2010/08/9th-CA-order-Imperial-County-8-17-10.pdf) accepted the appeal of Imperial County… IANAL, but it looks like the 9th Circuit has agreed to hold a hearing on whether Imperial County has standing; it hasn’t actually granted standing (the hearing will also decide on whether Hollingsworth et all has standing). [QUOTE=Bricker] …If Meg Whitman wins, can she have the state join the appeal the moment she becomes Governor?.. [/QUOTE] AFAIK she can’t. IIRC there’s a 90 window for the State of California to file an appeal and that window have passed by the time she’s sworn into office. [Previous page](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182.md?page=7) [Next page](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182.md?page=9)