Read post #71.
I’m honestly curious.
What happened to your eyes, or inside your head, when you came to post #71? Did you just sort of skim over it? Did you read it thoroughly but not understand it? Did you get partway through it and decide to skip the rest?
I’m hoping your answers will help me write more effectively for this board in the future.
You too? No, I’m hung up on the “basis” part of “rational basis”. I don’t see an articulatable basis for gender-orientation discrimination being offered, under the law or even cultural tradition, rational or not. Before we can judge if a basis is rational or not, there has to *be * a basis, m’kay? Clear now?
Bricker has just acknowledged that that’s true. Now, Bricker, the next step is that you articulate what that basis is, under the law, and whence it is derived.
SuaSponte, thanks for the *Smelt * cite (and no, I’m not about to buy a WestLaw subscription, but thanks for the suggestion). The ruling is a court’s simple agreement that “Yes, Orange County’s ad hoc excuse is in line with what we want to rule”. But is there any actual evidence that what the law was, that that’s what the considerations were when it was passed, that it’s been applied by the state in the way Orange County asserts it was meant to? Perhaps you could quote the research in the filing the court flatly (and apparently without commentary) agreed with.
BTW, yes, I know Bricker is a lawyer. Arguments here rest on their own merits, not on appeal to authority, however, as you must know. The intense difficulty you and he are both having demonstrating this argument’s merit should tell you something about the argument, shouldn’t it?
Really? They have the same inheritance rights, the same insurance coverage, the same right to visit both parents in the hospital even, the same standard of living with both parents having to file income taxes as single, everything is the same? The children themselves may have no different legal status, but they’re affected by their parents’ nonetheless.
You’ve asked for two things:
- articulate what that basis is, under the law, and
- whence it is derived
The first is certainly appropriate.
The second is not. I’ve just finished explaining that there needs to be NO source from which it’s derived. Under the mechanism of the rational basis test, the court can simply make something up that fits. There is no requirement for the court to point to legislative history, a preamble to the law, or ANYTHING to find a legitimate government interest. It can simply think up a legitimate government interest on its own.
So, to articulate what that basis is, under the law: it is a legitimate interest to encourage the stability and legitimacy of what may reasonably be viewed as the optimal union for procreating and rearing children by both biological parents.
Where did that basis come from? From whence is it derived? The court thought of it.
That’s all that the rational basis test requires.
No, not clear. Forget the term “rational basis” altogether. Focus on the how it is defined by the judicial process. You’re treating the phrase as you would like it to be defined, not as it is defined. It might as well say “excuse” instead of “rational basis”. You shouldn’t get hung up on either part of that phrase. It is also called “minimum scrutiny” in the due process hierarchy-- strict, intermediate, and minimum. Minimum, as in pretty much anything the state says is acceptable. M’kay? Clear now?
Unmarried straight parents. How are gay, unmarried parents treated any differently than stragiht, unmarried parents? None of the things you list are applicable to unmarried stragiht parents either.
Well, you could use FindLaw instead, it’s free. It would take a bit more time, as FindLaw’s search functions aren’t as advanced, but you’d find it.
Anyway, as Bricker has noted already, no such evidence is necessary. The legislature is not required to identify what legitimate state interest is being advanced by a particular law. All that is necessary is that, when the law is challenged, the government lawyers identify one. That is it.
Let’s put this in real simple terms - so long as no “suspect classifications” (race, gender, religion, etc.) are targeted by a law, a law is not going to be held unconstitional on equal protection grounds, except in exceedingly rare circumstances. The “rational relation” test is effectively carte blanche to legislators.
And if you want yet another cite for that, here it is.
Heller v. Doe by Doe, 509 U.S. 312, 320-324 (1993). Note that this case is from the US Supreme Court.
And if you think the Smelt case is simply an example of those looneys in Orange County, re-read the quote again. In particular, re-read “Similar statements of a legitimate interest have been made by various courts. See Wilson, 354 F.Supp.2d at 1308 (collecting court-recognized legitimate interest descriptions); In re Kandu, 315 B.R. at 145-46 (same).”
Here’s another case, from those wacky conservatives in Seattle, that goes through a brief bit of the history of courts holding that procreation and the stability of a child’s environment are legitimate state interests:
In re Kandu, 315. B.R. 123 (Bankr. W.D.Wash. 2004). Note the citation to numerous other courts contained within, including, again, the US Supreme Court.
Also note that the judge who issued the decision really hated doing it, but his obligation was to apply the law as it exists.
Um, we are having no difficulty whatsoever. Of course, neither of us are even attempting to demonstrate that the “rational relationship” test has any merit. We are both simply stating a fact - that is what the law is. If you want to start a debate on the merits of the rational relationship test, feel free to do so.
Between the children of unmarried heretosexual and the children of unmarried homosexual parents? No difference (an argument may certainly be made about the five states that don’t allow gay adoption).
Are children affected by their parents’ rights, or lack thereof? Absolutely. Indeed, that was the primary thesis of my law review article - greatly simplified, that the children and potential children of gay parents are adversely affected by their parents’ inability to marry each other, and that, given that the New York Court of Appeals had raised the principle of “best interests of the child” to near-fundamental right status in prior decisions, New York must allow gay marriage to protect those children and potential children.
But that argument only works under New York precedent. Well, I should say that it may work under New York precedent, as no attorney has yet had the courage to present my brilliant argument to a New York court. 
As for the rest of the country, the laws against gay marriage are not directed against the children of gay parents, and direct rights of such children are not implicated. The law would say that a child may be adversely affected by the choices of their parents, but that doesn’t equal discrimination against such children.
Sua
Um, in that the straight ones are unmarried voluntarily and are allowed to change their marital situation, while gay ones are not? Is this a trick question?
And yet the creation of these “suspect classifications” is a result of court rulings addressing those very equal-protection grounds. The argument is circular - no court ruling exists until it exists.
I obviously agree that the children are affected, but then how does it matter that that wasn’t the intent? Does the law write the children off as collateral damage?
Finally. Thanks for confirming that they can indeed invent something ad hoc, after the fact, and label it Truth. Took long enough to reveal the utter lack of principle involved, but here we are. It would be actually comforting to find any shred of evidence that there was anything more to any of these findings, any evidence that the stated intent had ever existed in law or in cultural tradition prior to its ad hoc invention by an ideological lawyer, but it ain’t there, just as I’ve tried to say all along and just as you now have confirmed.
Let me address this, from Sua’s cite:
Can we proceed to discussion of how there is any relevance whatsoever of the sexuality of the parents to the State’s (claimed) objective in sponsoring good childrearing environments? Can the State articulate any even-slightly-relevant grounds?
The standard required, as stated above, is certainly *phrased * to sound daunting to the point of impossibility, but is it really?
Under the law, gays can change their marital situation, by marrying someone of the opposite gender. I admit that that is an absurdity, but that is the answer, in law, to your question.
Well, the law can be circular. As the law now stands, suspect classifications are based upon immutable characteristics - race, gender, ethnicity, etc. Religious creed is admittedly not immutable, but is considered a suspect classification because of the First Amendment.
As of this time, sexual orientation is not considered an immutable characteristic. Thus, it has no more legal standing then does having long hair. Until sexual orientation is determined to be immutable - and the science, while getting there, hasn’t demonstrated this yet - homosexuals will not be considered a suspect class. And, unfortunately, it still may not be then - I really can’t predict how the law will respond to an immutable characteristic that is expressed in mutable behavior.
Laws can. A law will pass muster “even if the law seems unwise or works to the disadvantage of a particular group,” so long as that group is not a suspect class - which children of gay parents are not.
Um, actually, the particular principle - that the state’s legitimate interest in regulating marriage is based upon procreation - has been long established. I cited a Supreme Court case from 1942 to that effect - well before gay marriage was on the radar screen - and I’m quite sure the principle has been around a lot longer. It, after all, is the basis of laws prohibiting incestuous marriages.
And it didn’t take either Bricker or myself a long time to reveal this - it’s been the basis of our posts on this issue from the get go.
Sua
Yes.
I think I see what’s bugging ElvisL1ves.
He objects to the process of pointing at procreation and saying, “See? There’s your state interest!” when no legislator ever stood up and said, “We should pass this marriage regulation bill to ensure a stable home environment for producing children!” In other words, he’s objecting to how this can be called a state interest when no one who voted for the law ever defined it as a state interest.
If I’m right… my reply is simply that, yes, when applying the rational basis test, the court does not need to prove that the state interest it’s relying on was ever considered by the legislature. The court can simply make up a rational interest and assume that it’s the one.
That is why I asked – begged – ElvisL1ves and all other readers to understand the process of applying the test. He impatiently shrugged off the need for understand it - yes, yes, whatever you say, now let’s get to my question - and is now mired by the application of it.
Or perhaps the fault is mine – perhaps my explanation of the test didn’t clearly address the “legitimate state interest” part as completely as I could have. If so, I apologize, and hope that this ensuing discussion has made it clear. It’s not up to the state to name all its “legitimate interests” ahead of time. It’s up to the challenger to DISPROVE EVERY CONCEIVABLE state interest. If anyone can come up with even one legitimate state interest, then it’s game over - we have a winner. Presumably, a bystander at trial could shout out a legitimate state interest, and the court could say, “Good idea - I hadn’t thought of that! That’s the one we’ll use.”
Or – and I’m now in the position of constructing arguments for you – perhaps your objection is to the entire concept of the rational basis test. If that’s the ad hoc invention you’re referring to…
… Well, yeah. Just like its cousins intermediate and strict scrutiny, it’s a judicial invention. Not only is the test itself an invention, but the categories to which it applies is an invention. What is the authority that says gender disputes are intermediate scrutiny, and race strict scrutiny? Why shouldn’t gender get strict scrutiny as well? Why shouldn’t sexual identity or preference be judged on the same basis as gender, and get intermediate scrutiny? (As I’ve already addressed above, if we applied intermediate scrutiny to same-sex marriage bans, they would almost certainly fail.)
So – why? Isn’t it all just an invention?
Yup. Sure is.
But until someone in a robe rules differently, the current state of the law is as I’ve described. Could a federal court rule tomorrow that sexual preference classifications are entitled to intermediate scrutiny? Sure. Could their circuit court uphold them? Sure. Could the Supreme Court agree? Sure. And that would be a change to the law.
But it hasn’t happened yet. All the existing rulings are as Sua and I have described above. Change is possible, and the change would be to case law, so all it would take is overruling old cases with new cases. It happens - just ask Mr. Lawrence, in Texas.
But RIGHT NOW, no. It isn’t the law.
Oh, you mean something like:
Wish I had thought of provide a citation to that effect.
::wistles::
Sua
As everyone knows, “wistles” is the Scottish variant spelling.
:smack:
Bingo. I’d even allowed for some reference to cultural tradition having been articulated prior to the case being filed, but *that * doesn’t appear to be present except as an ad hoc invention written for the case, either.
You not only didn’t address it completely, you didn’t address it at all, except to assume it and proceed from there. My previous comments as to the bases’ essential nonexistence in fact stand.
Then I understand it just fine, thanks.
No shit. As I’ve already said, that’s circular, though - there’s no ruling until there’s a ruling.
Some readers might perceive a difference between what I said and what you said.
When no court has addressed an issue, it’s called an issue of first impression. That’s a possible interpretation of your words: no ruling exists at all.
But this is not an issue of first impression. There have been rulings already. The law exists.
To change the law, a judge would have to make a different ruling, and that ruling would have to be upheld. But the law is already made. It exists.
Well, not really - members of a gay couple can become married only by ceasing to be a couple, a situation that does not pertain to a straight couple. That’s a legal distinction.
Under the law, you mean, or in the real world? That hasn’t been adjudicated legally AFAIK.
IOW It won’t be ruled upon until it’s ruled upon. And that probably isn’t going to be long coming, right?
Same thing there, too - until there’s a court case to address the matter, it won’t be established. But it does not follow that such would be the ruling in a case not yet brought.
That it’s been used as an ad hoc invention in the past, as in the incest cases you mention, doesn’t make it less of an ad hoc invention in the present. At any rate, the fact that the state also freely creates marriages between nonprocreators should thoroughly undermine the argument that that’s really the basis for it. But then we’re getting into the rationality side of the issue - do you want to?
I don’t get it. Consider this example:
Let’s say the government passes a law imposing a mandatory curfew on all black men between the ages of 15 and 45. When challenged to find a rational basis, they say: black men between the ages of 15 and 45 are significantly more likely to commit a violent crime than the overall population. This (I assume) is true, but only because all men between the ages of 15 and 45 are more likely to commit a violent crime than the population as a whole.
Now let’s say I rewrite the paragraph with the following replacements:
“imposing a mandatory curfew” → “denying marriage to”
“black men between the ages of 15 and 45” → “gays”
“(significantly) more likely to commit a violent crime than the overall population” → “unable to conceive children”
“all men between the ages of 15 and 45” → “all couples that aren’t physically able to conceive children”
OK, I realize this is quite contrived and not a perfect analogy, but my point is that both the above example and the issue of denying marriage to gays have the same basic problem: the group of people to which the law is being applied is significantly more narrow than the proposed rational basis can justify.
Note that I’m not saying “wouldn’t it be more rational to do X”, I’m saying that if a rational basis need only be sufficient to justify applying the law to a larger class of which this class is a subset, it seems we can pretty much arbitrarily restrict the rights of anyone we want.
Under the rational basis test, the government can pretty much arbitrarily restrict the rights of anyone they want. The reason the law you outlined above would probably be found unconstitutional under equal protection is that it involves a racial category…“black”, and, when the court reviews laws that make distinctions based on race, it doesn’t use “rational basis”, but another test, called “strict scrutiny”, and it’s very hard for a law to pass the strict scrutiny test.
Sure. The only flaw in your argument is that your hypothetical law doesn’t get evaluated under “rational basis”. Because it impacts a suspect class - race - it gets evaluated under “strict scrutiny”.
So your argument is: look at my example law. It would never pass muster. But see - it’s logically equivalent to this other law, which IS passing muster!
The difference is that the two are not logically equivalent: they would not be judged under the same test.