“Sillyiness”? If you mean to remain civil, you’ll do well to avoid such bullshit.
The point is that it fails 2 prongs. It has no secular, non-religous purpose that is a legitmate state interest. That is the first failure.
The second failure is that it is advancing a religious purpose, therefore, excessive entanglement.
I don’t think ElvisL1ves is asking about the the process of rational basis. He is asking, I am too btw, “What is the rational basis of the SSM bans?” Are you saying “tradition” is a good enough reason to be “rational”?
“Preserving an important societal institution,” is a good example of the kind of language that has been used in the past to sustain “rational basis.”
Tradition and history have been used in earlier cases to prove that a particular right is fundamental, so, yes: “tradition” is a good enough reason to survive the “rational basis” test.
Again, this may seem to fly in the face of the “Native English Speaker” of “ElvisL1ves” Test. But as I explained above, that’s not the right test to apply.
Yes. In fact, it’s a better argument than some of the other nonsense that has cleared the rational basis hurdle. When we say rational basis is a low threshold, we mean it’s a really, really, really, really, really, really low threshold.
Segregation was based upon tradition also. What’s the difference here?
Remember my post #166 above?
Segregation was based on a SUSPECT CLASS: race. Laws that segregate are not analyzed under a rational basis standard. They are analyzed under a STRICT SCRUTINY standard.
That is the difference.
Right. So segregation on the basis of, oh, say, eye colour, would be perfectly constitutional. So long as eye colour wasn’t functioning as a proxy for race, of course.
I daresay we’ve been round this issue often enough.
I would like to say, however, that this debate has strayed rather far from the original topic, that of what constitutes judicial activism, and whether or not it’s a good thing. I believe that most of the decisions commonly cited as “activist” are not. Lawrence, Griswold, Lochner, et al are cases where one might disagree with the decisions and the reasoning behind those decisions, but where it’s not reasonable to conclude that the Justices behind those decisions were just making stuff up and ruling as they pleased in full recognition that the interpretations they were placing on the Constitution were merely flimsy rationalizations. Of the cases mentioned in this thread, I think only Kansas City and Boston school desegregation cases rise to the level of what might legitimately be called judicial activism. In all others mentioned, one can produce a reasonable, though perhaps not conclusive, argument for the interpretation used to derive the decision. The mere fact that one disagrees with an interpretive philosophy does not by itself imply that judges utilizing that interpretive philosophy have no respect for the Constitution, or the will of the people, or whatever.
I think that Strict Constructionists do a grave disservice to everyone involved by pasting the label “activist” on all judges who take a different view of the appropriate technique for interpreting legal text. As the Strict Constructionists in this thread have themselves argued, straight literal readings of the text aren’t workable. And, as the Strict Constructionists in this thread have also argued, it can be basically impossible to accurately discern the nature of the framers’ intent. And, as I have argued (though no one has commented on it), it’s not clear why we should look to preserve aspects of original intent dependent on outdated or even outright false (though historically common) empirical views, rather than focusing on preserving the underlying principles of original intent which may be independent of such views, and when coupled with updated understanding of empirical facts might result in non-traditional results. All of this means that it’s quite easy to disagree over which aspects of original intent should inform our interpretation, and to what extent we should allow historical context to hold basic principles hostage, without having to resort to denigrating the views of those who disagree as lacking principle, etc.
I have maintained for quite a long time, but don’t have the expertise in constitutional law to make my case to the satisfaction of many people here, that the broadbased guarantees of the constitutional text, and in particular of the 14th Amendment, require judicial interpretation of their sense, not merely of someone’s concept of the original intent, to accomplish the end of doing justice. Remember that one of the strongest strict constructionists was Hugo Lafayette Black – who was an absolutist regarding First Amendment guarantees to the extent that he was regarded as the foremost liberal of his times. If the Eighth Amendment prohibits “cruel and unusual punishment,” a judge must consider whether a sentence constitutes C&UP. If the Fourteenth Amendment requires that no state infringe the “privileges and immunities of citizens of the United States,” then a judge who believes in the text of the Constitution must be prepared to decide what constitute “privileges and immunities.”
As regards SSM, which this thread keeps getting back to the topic of, I have this to say to Huerta and colleagues: There is no “inherent right to same-sex marriage” to be discovered by judges. But either there is a right to marriage, or there is not – and Loving asserts that there is, that it is indeed a fundamental right. Now, having determined that there is, the next question is what it entails. Certainly it may be limited for reasons which have a logical basis – there may be a minimum age of consent, bigamous marriages may be prohibited, incestuous marriages may be prohibited, and rational bases can be established for these. But it would appear that one “privilege and immunity” is the right to marry the person of your choice absent a rational-basis prohibition. You may not marry a nine-year-old, your sister or grandmother, or the entire Dallas Cowboys cheerleaders squad. But you may marry the person with whom you fall in love if he or she does not fall into an exclusion. To permit this right to some people while restricting others from it is a violation of equal protection.
So the question is whether there is a rational basis for a state to prohibit a person from marrying another person of the same sex as him/herself. Not whether such marriages advance state goals, family values, child protection, or some other worthy government end, but whether such marriages may justly be barred on some rational basis on which the state may act. Social policy is not a valid basis for constitutional law. Rights and powers are.
And thus far I have not seen a rational basis not founded in considerations that are not amenable to constitutional use.
Except for one problem. Feel free to cite the state laws prohibiting same-sex marriage for the states prior to say 1980 or so. Most of these state constitutional amendments are simply following the recently passed state laws which added the “man and woman” clause to the marriage statutes. While one may argue that it was taken for granted that a marriage was between opposite sexes, that’s hardly the stance one would expect of a strict constructionist.
Marriage may well be a millenia-old institution, but while it may not have been practiced, it certainly wasn’t illegal in many places until recent years.
So, if we want to go with “tradition”, let’s do away with “Under God” in the pledge, same-sex marriage bans, and laws against slavery. So, we could make atheists, gays, and racists all happy in one fell swoop. So, abiding by tradition sucks, ignoring tradition sucks, and most importantly, tradition isn’t law.
By the way, and this is not just for Dewey, but is aimed at a LOT of participants in both sides of this. Lawyer and laymen alike are perfectly able to join in this debate, but there are quite a few of you all around who are quite clearly stating things as facts which are nothing more than opinions, and that’s obvious even to us laymen who get our law knowledge from Schoolhouse Rock. I reread large portions of the thread, inserting IMHO in front of every sentence I read, and it actually becomes a fairly decent debate, but as it stands it’s more of an “I’m right, you’re wrong” on both sides.
Gorsnak, with whom I disagree (I happen to think rights are indeed “natural” unless there is a compelling reason to remove said right, whatever that means to you), has at least attempted to actually debate the issue at hand. He’s sort of playing the middle, but he’s also very clear that what he states is his interpretation of how things should, as opposed to “The framers meant this, and no I can’t prove it, but it’s true.” He’s the closest thing to an Amicus Curiae on this issue that I’ve seen.
Discrimination that serves no purpose is not rational.
From this response, I assume you now understand and acknowledge the different standards used for measuring an Equal Protection claim, and you are now arguing that a refusal to recognize same-sex marriage does not survive even the rational basis test.
Is that understanding correct?
“No secular, non-religious purpose” is necessarily the same as “serving a religious purpose.” Thus, every law that failed prong 1 would necessarily fail prong 2 – if you are correct in thinking that “advancing a religious purpose” equates with “excessive entanglement.”
Thus, prong 1 and prong 2 are identical.
Thus, there is only one prong.
Thus, your argument as to what “excessive entanglement” means probably is not founded in anything that anyone else has ever thought. Or do you have a cite for your argument that prong 2, “excessive entanglement” means “advancing a religious purpose,” (i.e., means “prong 1”) as opposed to (as I suggested) “getting government overly involved in the internal affairs of a church , or the hierarchy of the church overly involved in the internal affairs of government?” I’m waiting.
Do you know of the principle of construction that disfavors rendering language surplusage? Judges, even activist judges, tend not to enunciate three prong tests when two of the prongs telescope into a single prong.
This isn’t worth arguing anymore, but nonetheless, I’ll await your cite on your unique view of “excessive entanglement.” If at the same time you can find anybody else with any meaningful jurisprudential credentials who thinks that the Establishment Clause, of all things, is a source of a “SSM” right, please do supply the support now; otherwise, this rabbit trail is exhausted.
By the way, as I noted before, the reason that “SSM” laws don’t even invoke Establishment Clause arguments is because they don’t deal directly with religion (the prima facie showing that a plaintiff must make to even invoke the Lemon scrutiny). I’ve been overlooking your failure even to make a prima facie showing, but shouldn’t. Most Establishment Clause cases deal directly with churches or religion. Attempts to have prayer in school. Attempts to grant tax breaks to particular churches. Attempts to permit or deny menorahs on municipal property. The Pledge of Allegiance’s references to God. How does a law that says only two persons of opposite sex can marry directly touch upon religion? Certainly such regulations of marriage don’t explicitly reference any religion or religious principle. What about the many non-religious people who oppose “SSM?” Oops, there goes any argument that the marriage regulations are “religious laws” at all, and we don’t even get to your, uh, novel “legal arguments” as to Lemon because the State has no burden at all to defend a law touching directly on religion, because it doesn’t. So we don’t even get to the Lemon test. I was willing to argue the test with you, hypothetically, but on second thought, it’s not worth the candle. We don’t even get to the test because the state isn’t mandating or regulating religious practice.
“*f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
The “protection of marriage” amendments were enacted purely out of animosity towards a particular group (homosexuals). This group is politically unpopular.
This is an impermisable justification under the Equal Protection Clause.
Hmmm. Which word are you ignoring? “Bare.” Meaning “accompanied by nothing else.” As the laws that make “SSM” impossible (including not just the baseline marriage laws, but the special amendments actuated by the recent activism) are motivated out of beliefs that heterosexual marriage best leads to positive social effects; that marriage is sanctioned by the state for the purposes of procreation; that some sorts of marriage help society more than others – thus they are not motivated solely out of a “desire to harm a politically unpopular group.”
Thus, at a minimum, these laws are motivated out of a specifically favorable view of the benefits of one particular form of relationship (i.e., heterosexual, procreative, marriage). Given that the baseline laws and understandings on who can marry evolved at a time at which “homosexual marriage” was a concept fathomable by approximately zero percent of the population, it cannot be meaningfully said that the laws in question were generated with any contemplation of homosexuals at all, let alone a sole-anti-homosexual purpose, as opposed to a sole procreative-marriage purpose.
And thus, the dicta you cite (which is dicta, not holding) is not even applicable as dicta.
Bullshit. If it were meant to promote procreation then elderly couples would be excluded from getting marriage licenses.
I know this is irrelevant to Federal Law, but the Massachussetts ruling on gay marriage addresses the “procreation” argument quite well:
And hence you have provided your interpretation of what “promotes procration.”
But, sadly, that is not identical to the interpretations that might be, could be, and were implemented in 50 states. Assuming that society has any right in trying to tweak fertility of its members:
Does limiting “marriage” rights to male-female couples, with no further limitations, advance procreation as much as would limiting such rights to fertile, fecund, male-female couples of proven fertility, with prior proof of such in the form of four children? No. But that was never the question.
Does this form of marriage allowance (heterosexuals only) advance procreation as much as a form of marriage definition defining marriage as that relationship that has already produced children? No.
Does another form of marriage definition (heterosexuals only, including barren elderly heterosexual couples) advance procreaton more than a definition of “marriage” that included “same sex marriages” that could never lead to procreation? Yes, obviously, and by far.
“But that’s not fair! It’s choosing one form of public policy or procreation-advancement over others which are, if inferior, not that badly inferior!”
So freaking what. Rational basis analysis is not the venue within which to dispute the rational (if disagreeable to you) choices your fellow citizens make by majority rule. Do that in the legislature.
:rolleyes:
Historically, marriage has bugger-all to do with procreation. People will procreate regardless of how society is structured. Marriage is about property, and specifically the orderly inheritance thereof.
If we’re going to have a rational basis test, we should be able to apply it. Your conception of it would be more aptly named a “batshit insane” test.
No, it wouldn’t. Marriages between heterosexuals (of any age, race, fertility level) would be more likely to produce children than would “marriages” between homosexuals.
Thus: “The state in general favors marriages between heterosexuals, which are at least in theory capable of producing children; but does not choose to favor “marriages” between homosexuals, which wlll lead to children 0% of the time.”
Thus, the state agrees that the aggregate, or demographic-specific, fertility rate of various heterosexual populations is tricky to judge, but is non-zero, in aggregate; whereas the aggregate fertility rate of homosexual sodomy is, pretty predictably, zero, in every age group, at every level. Thus, if fertility ever has a role as a basis of state sanction for marriage, heterosexual vs. homosexual preference may of course be included in this calculus in determining what rights the state will bother to extend.
“But I weigh the interests differently!” Who cares? The only question is whether a state might find a rational difference for determining two groups to be not equally situated. Not whether you agree with this determination.