How would SCOTUS rule on California's Prop 8? With what consequences?

Great Debates
181

I suspect the “Froot Loops” scenario is tackling the immutability question. I may be of some use here:

  1. “Homosexuality” as a suspect classification (as opposed to however anyone else may use the term in other contexts) has reference to the orientation, that is, the tendency on the part of homosexual persons to find that group of people whom they consider to be romantically and sexually attractive, potential sex partners, boy/girlfriends, and potential lifemates, exclusively or predominantly among people of the same sex as themselves. This condition is in human terms immutable – that is, the near-unanimous testimony of homosexual persons themselves is that they are unable to change their orientation by their own efforts. The orientation, not the “practice of homosexual activity”, is what is immutable. Someone compelled to perform a homosexual act, e.g., in a prison rape, is not “being homosexual” in the “suspect classifications” sense, nor is the fact that many if not all homosexual people can compel themselves to perform heterosexually if necessary for some reason. Just as a valid contract at law presupposes a willing, uncoerced seller and buyer, we are talking about what is chosen when true freedom of choice is available in making this definition. A gay man or woman may find him/herself compelled by social pressure to enter into a heterosexual relationship, but this is not what he or she would choose to do given free rein.

  2. For obvious reasons, the above does not apply to bisexuals, nor is it applicable if one admits the presumption of the existence and active presence of God and direct divine intervention enabling such change. While the majority of Dopers would regard such a presumption as delusional, I submit that for the purposes of this discussion, its resolution is irrelevant. Whether or not God exists and empowers a handful of so-called “ex-gays” to change, the point remains that they are unable to change under their own power. A parallel to paraplegia may be useful – because there have been a few debatable reports of miraculous healings does not mean that we should not regard damage to the central nervous system causing paraplegia as effectively immutable. Whatever God, if He exists, may choose to do or not do is irrelevant to what people are capable of doing in the absence of His intervention.

  3. Religion is often regarded as an exception to the “immutability” standard. I submit that it is not. What persuades people to a given belief system is not chosen but something that they find themselves believing by the pressure of external forces and conditioning. While this may change over time with additional experience, it is effectively immutable at any point in time – an ironic counterpoint to sexual orientation.

182

I suppose my list is what they use for Strict Scrutiny (I personally think homosexuals meet that standard as spelled out in an earlier link to another thread). Mostly I was pointing out there is a method to distinguish between groups who favor a particular cereal versus the choice between homosexuality and heterosexuality. We don’t need Strict Scrutiny. Just Intermediate or a new Rational Basis with Teeth. Should be easier than gaining protection under strict scrutiny I’d think.

Interestingly Citizens for Equal Protection turned on Rational Basis and is a good example where the state had no “rational” Rational Basis. The state said it had an interest in procreation (which historically has never been the case) and the court accepted that it seems. The court accepted that preventing SSM was a rational means to that goal which, as has been previously noted, it isn’t. Indeed it is the reverse. If the state wants more babies then allowing SSM will get them more babies. But the court uncritically accepted that despite it making no sense.

It’s be akin to the state saying they wanted to cut spending so they pass a bill that raises spending and when concerned citizens sue them in court the court says it all sounds fine to them.

Also interesting is Cleburne appears to be a case where the court refused to extend protection to a certain group but was also a rare case where the court said the state had no rational basis to deny them. Personally I think the state had a better rational basis in Cleburne than they do for denying SSM.

183

Probably get thrown out on appeal, but if I were the trial judge, I’d simply defer to precedent, pronounce sentence, and indicate that it was to be carried out by the crowd after the person among them without sin cast the first stone.

Stare decisis, y’know!

184

Wait, how does that work? Same sex couples can’t have children with each other.

185

Please tell me you are kidding.

True, two people of the same sex cannot procreate with each other.

There are however several avenues open to same-sex couples to have children.

They can adopt.

They can use a surrogate mother.

Women can artificially inseminate themselves (via a sperm bank or willing donor).

Fact is homosexual couples can and do have children.

They are more likely to have children if they have the support of the state that heterosexual couples do (e.g. tax breaks, family leave, family health benefits, divorce protections and so on).

Two people just shacking up have far more problems facing them if they choose to have a child and thus are less likely to do so. If the state is interested in marriage for procreation then SSM will see more babies born.

186

The proponents of prop 8 actually introduced evidence that SSM is better for children. The judge expressed surprise in the decision that their evidence actually contradicted their position.
:dubious:

187

Yes, I’m aware. But the people making that argument generally don’t support any of those things. Their argument is that the purpose of marriage is to encourage men and women to procreate with each other and then raise the children in stable, two parent male/female households.

188

Huh?

You mean people don’t want homosexual couples to raise children?

That is bigotry pure and simple. May as well say black people can’t raise kids. It’d make as much sense (which is to say none).

Entered into the facts in Perry (IIRC) was evidence that SSM couples’ children were just as well adjusted as kids in traditional families.

Further, if the state interest is procreation why is the state interest only heterosexual procreation? Do tell the rationale behind that. If they want babies many homosexual couples can and will oblige given the same benefits heterosexual couples have.

189

I’m shocked! Shocked that there’s gambling in this establishment! You’re surprised that people in this country are bigoted against gays?

The difference between passing a law that’s bigoted against black people and a law that’s bigoted against gay people is, as people have been trying to explain in this threat, that as the law stands right now, it’s constitutional to pass a law that discriminates against gays, but not one that discriminates against blacks.

And the rationale behind a law that only supports heterosexual procreation is that, when a law is being reviewed according to rational basis, it doesn’t have to be written in an effective way.

190

Read your history.

Blacks used to be discriminated against, now they aren’t (well, at least the law does not abide it anymore).

Things can change and that is what we are discussing here.

191

And in 1950, if you had asked, “Is it constitutional to discriminate against blacks?” I’d have to answer that it is.

But if you want to know what I think, instead of just what the law says, it’s that things can change, and I hope they will, but right now gays aren’t equal to straights, and most Americans are ok with that, and the law reflects the public will. That’s changing, but it hasn’t changed yet. And I’m afraid if the case gets to the Supreme Court right now, the Court we have now (meaning Kennedy) will think about it and say, “Do you know how pissed off people are going to be if we say that gay marriages have to be allowed nationwide, especially if we do it by calling gays a protected class? Lets play it safe.” and uphold Prop 8. Then any hope for a judicial solution will be dashed in my lifetime at least. The court’s willing to overturn a law saying “People should discriminate against gays”, like they did it Romer, and they’re even willing to overturn a sodomy law that’s almost never enforced like they did in Lawrence (although even then they weren’t willing to give gays any sort of protected status, instead taking the easy way out and rooting the decision in privacy.) I don’t think they’re willing to extend gay marriage to a largely unwilling populace, many of whom hate us.

192

But you miss the point.

  1. How does banning SSM affect children if they CAN’T have children? Explain how the rationaal basis analysis is allowed to use the “Denying the Antecedent” fallacy:
    Children should be born only to married couples
    Gays can’t have children
    Therefore Gays can’t be married

  2. I would think that if that were a state interest, that a state could force unmarried couples that got pregnant to get married. Would that be legal based on the rational basis test?

  3. And if marriage is only to produce babies and SSM marriage is bad because they can’t have babies, then why did California used to have a law specifically allowing sterile people to get married provided they revealed it to their partner? It got taken out when the definition of marriage was rewritten.

193

I miss no points.

Here is the actual reasoning:

State wishes to encourage and reward the conception of children
State accomplishes this goal by creating a legal state called ‘marriage,’ limiting it to men and women, and giving tax and legal advantages to couples in that state

No, because the rational basis test would not be used.

Who cares?

For about the sixteenth bazillion time, you cannot attack a law under rational basis by asking, “Well, if that’s the reason, why don’t they do this other thing that is an even better way of advancing their interest?”

Stop doing that. It’s not part of the rational basis test. I have no idea why people continually return to asking that question, despite being told repeatedly that this is not how the test works. It’s in the quoted text right above: we do not care if there happens to be a better or more efficient way of advancing the apparent state interest. Can’t you see it sitting there, waiting to be read and understood?

194

I get rational basis now. But it’s an ineluctible concept. Mind if I try, and you critique my approach, Bricker?

Let’s say that the State of Virginia prohibits the manufacture of widgets without a state-trained and -licensed widget inspector on the premises. And there are only four guys in the state licensed to inspect widgets, all gainfully employed at local widget works already in the state. And add the training of widget inspectors to state standards takes several years.

As majority stockholder, president and CEO of Tarheel Widgets, I hold a desire to expand into Virginia, to manufacture and sell my quality widgets to denizens of the Old Dominion. But this law prevents me from doing so. So I either (a) build a widget works in Wytheville, or (b) buy land in Wytheville for my widget works. In case (a) I am arested; in case (b) my permit to build a widget works is denied by the State Bureau of Widget [del]Wegulation[/del] Regulation.

In either case I engage our estimable Bricker to represent me in challenging the constitutionality of the Virginia Widget Regulatory Law, probably founding it on an argument that it’s an impermissible state intervention into my rights to engage in interstate commerce, since making widgets is not prohibited, only the making of them without a state-trained inspector inspecting them, none of whom is available. I’ll leave my argument up to Bricker’ that’s what I’m paying him for.

But the state, faced with a challenge to the constitutionality of its law as violating a citizen’s civil rights, must now defend it on rational basis grounds. And it says, an average of six people are injured annually nationally, two in the past decade in Virginia, owing to faulty widgets. We are protecting the public health and safety, as a part of our police powers.

The judge looks at this argument. Now, just as I am presumed innocent until proven guilty at trial in a criminal case, a law is presumed to be constitutional until proven otherwise in a lawsuit. And so the judge, faced with such a challenge, is required to find some reason acceptable at law why Virginia might have passed such a statute. Despite Bricker’s best arguments, they accept the idea that Virginia had the right and duty to pass such a law in order to protect the public health and safety. It doesn’t have to be the best possible law to accomplish the reason given, it doesn’t even have to be a good reason. All that is required under rational basis is that they can point to some grounds that pass constitutional muster why the Virginia legislature might have taken it into their heads to pass such a law.

This doesn’t mean we can’t go on and challenge it on other grounds – to me, it looks like that statute is a way of protecting a state oligopoly on widget manufacture, an impermissible trust. But it did pass the rational basis test – it gave a reason founded in the police power for having adopted the law.

Contrast this with Colorado’s Amendment II, struck down by Romer. The state advanced no reason for denying gay people access to the courts to challenge allegedly discriminatory laws, ordinances, rules and regulations, except that public policy frowned on homosexuality. This was the key decision in what Bricker calls “rational basis with teeth” (and I hope his term sticks in genral parlance; it’s accurate and evocative). Essentially, Colorado advanced no grounds for that amendment except that it can. And the courts said, no you can’t.

195

While I get and accept your description of how Rational Basis works in the US I think people’s innate problem is with something that is called “Rational” but it actually anything but “rational”.

We are not talking about whether the state is deciding to pass a law prohibiting turning right on a red. We are talking about a law that denies constitutional protections.

As such one would hope the state needs to have a bit more reason than, “Cuz we feel like it” to support the law.

In this case (SSM) the reason given, procreation, is not supported at all by the history of marriage. Never has the state espoused a need for procreation with marriage and a great many of the benefits marriage provides have nothing to do with promoting that goal.

Then you have the law which is to address the espoused reason which is actually irrational. Nevermind if it is the “best” means to achieve the goal. The law actually accomplishes the reverse and sees to it fewer babies are born. If nothing else it has nothing to do with promoting the stated State interest.

I think people are stunned at that state of affairs, that the law can be so utterly capricious especially as regards the constitution. That an attorney, of all people, thinks that is just peachy and as it should be is surprising.

196

Where in the world are you getting that the rational basis scrutiny gives the states a pass on the U.S. Constitution? You’re begging the question. It is not a given that the constitution is being violated, and this technical rule provides a “get out of jail free” card. Rather, for this level of scrutiny, the rational basis says that there is no equal protection issue–IOW, there is NO constitutional problem.

No one is hand-waving away some self-evident constitutional offense, at least as far as this test goes–this is the test that determines if such an offense exists. Your syllogism is a non sequitur.

I personally think that sexual orientation should be subjected to a more rigorous standard. But that doesn’t mean that against a rational basis review that it doesn’t get over this exceedingly low (as it should be) threshold.

197

Well, this may be part of your problem. In fact, it was not that long ago that infertility was grounds for divorce. It’s really not that difficult to understand that procreation, within the institution of marriage, has been an important state interest in the past. It may be less so now, but be careful when you start using words like “never”. Remember, no is saying that the state ever required married people to have children, but that marriage and child bearing were closely linked, with the state having an interest in keeping that so.

198

Indeed, there was evidence cited in the prop 8 decision that SSM would promote bringing up children in marriages and how that was beneficial for the children and in the interest of the state. Allowing prop 8 to stand would prevent many children from having the benefit of married parents.

199

OK, so I see how a law providing marriage to opposite sex couples (for the presumed purpose of encouraging procreation) meets the technical definition of “rational basis” – the toothless version, anyway. (Although I agree with you that the courts really ought to use at least intermediate scrutiny here.)

But here’s the thing I’m confused about. The law in question, Prop 8, doesn’t create marriage as an institution for opposite-sex couples. That institution already existed. All the law does, as I understand it, is say, essentially: “Same-sex marriages won’t be recognized.” It didn’t change the status quo for opposite-sex marriage at all.

So what’s the rational basis for adding this additional law (prop 8) that says same-sex couples can’t marry? Surely that law isn’t encouraging procreation. I mean, unless the same sex marriages which were previously taking place in California were somehow discouraging opposite-sex couples from procreating.

200

Tim raises an important point here. We’ve been talking about SSM and Proposition 8 as if Prop 8 had been a defeated referendum on extending legal recognition, and benefits, to SSM.

It was not. It made illegal the pre-existing state whereby California recognized and licensed the marriages of SS couples.

That is the removal of a right (or privilege if you insist).

There is a very real difference between what Proposition 8 did and a measure passed in, say, Arkansas prohibiting the state from recognizing SSM at all, when it has never done so.

That changes the picture significantly. What form of scrutiny is appropriate for a law alleged to bar a class of persons from access to a right – a right, moreover, recognized in broad terms in Federal jurisprudence as fundamental?