I don’t think you can say that. Marriage has been recognised in broad terms in Federal jurisprudence as fundamental, but SCOTUS took pains in the Lawrence ruling to point out that the same did not apply to SSM, specifically.
In response to Polycarp, I guess I see three kinds of laws here:
(1) A law creating some new institution called marriage, and making it available to opposite-sex couples only. Here I can see how you’d say “Sure, the law discriminates against same-sex couples, but it’s rationally related to the legitimate government interest of encouraging procreation, so it passes the rational basis test in spite of being discriminatory.” Of course in reality no such laws were needed, because opposite-sex marriage already existed.
(2) A law pre-emptively saying: Marriage won’t be extended to same-sex couples, we’re keeping it limited to opposite-sex couples only. I don’t see how encouraging procreation among opposite-sex couples is a rational basis for this law, since it has no effect on opposite-sex couples at all. It leaves the status quo completely intact.
(3) A law (like Prop 8), saying: We’re going to stop extending marriage to same-sex couples, in spite of the fact that it was previously extended to them. Again, I don’t see how encouraging procreation among opposite-sex couples is a rational basis for this law, since it has no effect on opposite-sex couples. It changes the status quo, but only for same-sex couples.
So it’s true that Prop 8 does more than some similar laws in other states, because same-sex marriage was already legal in California. But even in those other states, I’m not following how the rational basis analysis based on the effect on opposite-sex couples would work, given that there is no effect on opposite-sex couples.
Marriage is a fundamental right. Marriage may be regulated – we do not allow 13-year-olds to marry, nor a brother and sister. But those are prohibited forms of marriage, not a distinct entity separate from marriage. Some states permit 17-year-olds and/or first cousins to marry; others do not. What they are permitted to do or restricted from doing is marriage. In the same way, California permitted same-sex couples to marry for six months until Prop. 8 prohibited them from doing so. My question was, “What form of scrutiny is appropriate to a law which prohibits a class of people from exercising a right previously extended them?” and I noted that that right – marriage – has in broad terms been recognized in Federal jurisprudence as fundamental. Baker v Nelson tp one side, Federal courts have never until now tackled the constitutionality of a law removing SSM from persons previously entitled to it. And I was not attempting to claim that SSM was a fundamental right – but rather that SSM is a form of marriage, and marriage in general is a fundamental right. One subject to regulation, but still a fundamental right.
That’s a good point.
But rational basis doesn’t ask, “Why did the law get added?” It asks, “Is this law permissible?”
Prop 8 passed following a court decision that the California constitution required the state to recognize same-sex marriage, and it amended the state constitution to say, in effect, “No, court, it doesn’t.”
I suppose, though, if the court wished to subject just Prop 8 to the rational basis test, it could be that the state has an interest in shutting down broad judicial construction of its constitution. That is, the courts extrapolated general language about equal protection to fashion a new right, previously unrecognized; the legislative authority has a rational interest in giving narrow effect to the Constitution, to ensure that its intent, and not the intent of judges, is what becomes law.
I’m just speculating, so the foregoing is not ahypothesis I’d be prepared to defend tooth and nail. The real answer is, as I say, that rational basis looks at the totality of resulting law.
Great point, Bricker!!
How’s that tom? Good enough? I won’t ask Bricker anything about the “rational basis” test? Are we good now?
Huh?
So, when African-Americans were being discriminated against and there was no EP law protecting them the way to determine if they were being discriminated against was Rational Basis? If that were so race would never have gotten any protection at all. Goes like this:
State: “We have an interest in not allowing interracial marriage because it damages the white gene pool.”
Court: “Ok…that’s a reason. Carry on!”
:rolleyes:
In which case? In Loving, they used “most rigid scrutiny”, which is the same thing, if that’s what you’re referring to.
In Brown, Warren doesn’t really enunciate a test, just saying that even if white and black schools are equal objectively, there are intangible factors that make them unequal, although, it does in a footnote, refer back to the Strauder v West Virginia finding that the purpose of the 14th Amendment is to declare that:
Plessy, of course, was decided before the “strict scrutiny/rational basis” test was developed. That’s probably why Brown doesn’t really refer to the test either. The idea that some higher level of scrutiny should be applied to discrete minorities because they can’t count on normal political processes to maintain their rights shows up in a footnote in 1938’s US v Carolene Products, and said that laws that specifically discriminate against a certain race need a higher level of scrutiny in the cases that dealt with Japanese internment in the 1940s, but it wasn’t really until the 1960s that clear tests were set up. The 1960s-1970s were really when the court started really liking setting up constitutional"tests", I’ve noticed. You don’t really see a lot of that before then.
And I think what he’s trying to say is that we don’t know if gays are being unconstitutionally discriminated against as a class until we first figure out what level of scrutiny should be applied to discrimination against gays.
“Marriage in general” isn’t a fundamental right. If it were, the following “marriages” would have been recognized throughout the history of our country as a fundamental right: - underage heterosexual kids, - underage boys, - underage girls, - underage boy & gown man - underage girl & grown woman - sisters - brothers - your Mom - same sex adults - a dog - your pet rock. And don’t throw Loving v. Virginia at me. The marriage in that case was nothing more than a variant of the fundamental right to a heterosexual marriage with another non-familial adult. As such, the Judge in the Prop 8case was off his rocker 1) to argue marriage in general was a fundamental right and 2) to define marriage in such a manner to permit nearly all of the above relationships not permitted by our nation’s societal mores as codified in every state. Here is his “finding of fact” #34 where he defines marriage for our nation: *“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” * The pet rock almost qualifies.
Did you actually read my post? Focus, friend. If you’re asking me if I think rational basis is the appropriate threshold for EP cases involving sexual orientation, I’ve already answered that: No. In my opinion it is not the appropriate hurdle, it is too low. You somehow left the last sentence of my post out when you responded. I’m sure that was an oversight.
If one of your points is (and it was) “there is no way this prop can get over the rational basis threshold,” I will respond as I did–certainly it does.
So your analogy fails. I would have reacted similarly. Yes, there is probably some weak (but greater than “none”) rational basis argument to be made to support laws against inter-racial marriages. No, I don’t believe that’s the appropriate test for such a constitutional matter.
Hi. I’m just reading along. But I would like to have an example of a law for which the rational basis test would be the proper bar. This would help refute that the test should always have teeth.
Rational basis review is the default. It typically applies when there is no suspect class involved. An EP assessment for a non-suspect class need only get over the rational basis hurdle, not intermediate or strict scrutiny.
So, if you buy that sexual orientation is not a suspect class (as the courts have, though I disagree), then this case is an example.
We can’t do better than the first Supreme Court case that introduced rational basis…US v Carolene Products Company (1938).
Congress had passed a law called the “Filled Milk Act”, which banned interstate commerce in filled milk. Filled Milk is where take skim milk and you mix it with some sort of fat or oil besides milk fat. It can be used in place of regular evaporated milk, in baking or the making of ice cream. The dairy companies were worried about cheap foreign competition, so they got Congress to pass the law.
Enter a company in Illinois called Carolene Products. Carolene Products was the proud producer of Milnut, which was condensed milk made with coconut oil. They were indicted for violation of the law, and appealed up to the Supreme Court, where they arguged, among other things, that the law was an equal protection violation. The court said, in part:
So there’s pretty much all the elements of the rational basis test right there. The Filled Milk Act doesn’t violate the Equal Protection clause.
Bricker missed the point (again) of the Washington AG argument.
It is bad to have children to unwed parents because it costs the state more money, builds bad citizens, etc. Therefore, we need to ban SSM because they cannot have children together. So basically it boils down to this:
*Gays being married or not affects the number of children born out of wedlock *(by the Wa AG argument).
I understand the rational basis test does not need to be the best way to impact the state interest, but it should at some level address the state interest. Would it pass a rational basis test if instead of SSM, the state banned people from owning dogs to encourage children to be born in wedlock.
And can you explain (not a nitpick but a true IANAL question) why if the state has an interest in children being born to married couples, why would forcing couples to get married if they get pregnant NOT be a rational basis test.
If Saint Cad is accurately epitomizing the Washington AG’s argument here, I too would like to see how this holds up to rational basis analysis. It would seem to me that the reason given would need to have a nexus in demonstrable fact, to be a conclusion drawn from evidence available to the court. I understand that it need not be a good reason nor a law that effectuates the reason well, but that nexus, ISTM, does need to be present. This has all the logical relationship of a legislative intent clause that says, in effect, “we are banning adult entertainment businesses because we have made the legislative finding that having ducks swimming in the pond adjoining downtown attracts commerce and enhances citizens’ quality of life.”
sigh
- Do you have a link to the AG’s argument?
- Even if you are absolutely right about the AG’s argument, who cares? A particular argument that is advanced by the state that turns out to be useless doesn’t end the inquiry. Rational basis asks if there is a legitimate state interest, and if the law involved is rationally related to that interest. Period. The mere fact that the state AG doesn’t advance that argument isn’t meaningful The court can independetly imagine an argument.
The wording is: It must be rationally related to the state interest.
Yes.
Because more than the Equal Protection Clause would be in play. A law forcing people to get married would be attacked on due process and liberty interest grounds.
So here is the argument, again:
- The state has in interest in encouraging procreation.
- The state effects that interest by creating a status called “marriage” and making it available to opposite-sex couples, encouraging them to marry and create a stable environment for children.
Encouraging procreation is a legitimate state interest.
Creating a status called “marriage” that is limited to opposite-sex couples is rationally related to that goal.
End of inquiry.
Court TV maybe a decade ago. I remember the case very distinctly because having taken logic (philosophical and mathematical), I was sitting back and picking apart all of the holes in the AG’s oral argument.
So let me ask you this. If the state has a legitimate state interest A and claims that law B is because of interest A but law B in fact has no effect on interest A, can it still pass the rational basis test?
If a state passed a law banning sterile people from getting married using similar arguments to anti-SSM folks, would it have the same standards to meet in court?
It would be subject to rational basis review, but a law like that would probably be overturned on reasons other than equal protection. The court would probably strike down a law forcing people to prove their fertility before granting a marriage license on privacy grounds, I’d imagine.
Yes, it can. If the law is rationally related to any legitimate state interest it survives. It won’t pass because of interest A if “no effect” means that it’s unreasonable to expect any relationship between the ends and the means, though. Because if it doesn’t have anything to do with A it isn’t rationally related to it.
Yes.
So in addition to not caring about the AG’s argument anyway, we can now add the fact that Court TV may not have shown the entire oral argument, and even if they did, the state’s written pleadings contain ALL their arguments – the oral argument is not intended to contain every possible ground argued by a party.
No. “No effect,” is not “a rational relation to.”
Among other grounds. Its Equal Protection argument would be on rational basis grounds, yes.