So a federal judge has ruled that the Louisiana statute prohibiting same sex marriage in that state is constitutional, because same-sex partners are not a protected class, and therefore the law does not have to be defensible on any rational basis. That is, although the purported purpose of the law is to (among other things) preserve the links between children and their natural parents, the state in defending the law is under no obligation to prove that it actually does that, or ever could do that, or that there is any connection at all between keeping same-sex marriage illegal and preserving these links between children and parents.
On a practical level, the effect of this ruling will probably be to hasten the intervention of the supreme court sooner than later on this issue.
But that’s not what I want to discuss here; nor the merits of same-sex marriage per sé.
Instead I would like to talk about the legal concept involved. Simply put: why does one have to be a member of a protected class to get equal protection under the law? How is that distinction a good thing?
I am not taking a position really, except that I don’t understand it. I am tempted to fall back on Mr. Bumbles’ very understandable opinion that the law is a ass, but that’s too easy. I would rather understand it first, and then come to that conclusion.
So can someone break it down for me, in layman’s terms, simple as a-b-c?
I wish the term “protected class” were not used because it is so widely (and understandably) misunderstood. We are all members of “protected classes.” For example, sex/gender is a protected class. Race is a protected class. We all have race. We all have gender (even if the gender is ambiguous to greater or lesser degrees or mutable).
So, what does it mean? It means that if a law classifies people based on certain characteristics, that the law is going to be more suspect than if the law classifies people based on other characteristics. The law is going to have to justify its existence more. So, if you classify people by race, the law has to show that it’s really really important that they be classified by race. But if you classify people by weight, the law does not have to show that. It just has to show that it’s rational to do so.
This judge is saying that sexual orientation is more like weight than race, and that because sexual orientation is not the sort of classification that is suspicious and therefore requires better justification, the law gets to do whatever it wants based on that classification so long as it’s rational (and maybe so long as there isn’t specific types of hostility involved).
Lots of people think it’s only a matter of time before sexual orientation becomes a suspect classification. But it’s not officially one yet because the SCOTUS hasn’t identified it as one.
But I am still confused on your second sentence here. Does the state have to actually show that there is a rational basis for classifying persons who wish to legally marry based on sexual orientation? What counts as “rational” in this context?
The judge seems to be saying that the state’s interest in preserving the links between children and their natural parents is a rational basis for this law (perhaps one among several). However, the judge does not seem to draw any link at all between the law and any evidence that might exist that there is any connection between the definition of marriage in the law and the status or well-being of children*. He just seems to assume that it’s true. Is no evidence required? Is that their definition of rational?
*From reading previous debates on this topic, there doesn’t seem to be any, anyway.
I should have phrased that better. I was unintentionally confusing. One of the tricks of rational basis is that the person saying they are being discriminated against has to show that it isn’t rational. And the court can look to things that were never intended by the makers of the law. In other words, the court can say “Even though this is not why the law was passed, we can conceive of this rational reason for such a law, so the law has a rational basis.” By “rational” all they mean is essentially “This law is related to this goal.” “Rational” doesn’t mean “not stupid.” It should, but it doesn’t.
It’s very very hard to get a court to say that a law does not have a rational basis. VERY hard. If a court decides that there’s no classification going on that’s hinky (legal term there), the law will probably stand. So, if you’re for SSM, you don’t want the law against SSM judged on a rational basis standard.
Instead, what SSM advocates say is, “Wait. Sexual orientation isn’t like weight at all. Sexual orientation is like race.” And a lot of the federal courts have agreed that it is like race or gender rather than weight. If the Supreme Court agrees, eventually, then that will mean that the state cannot sit back and say “Disprove how rational our law is!” (Remember, this is really hard to do, to show that the law isn’t related to the issue.) It would mean that the state would have to defend the law by showing how the law is a great thing that is needed, and parceling people out into categories is what the state really should be doing and that it’s a good way for them to achieve their goals.
So, once a particular classification of people is ruled as a pretty suspicious thing for a law to do, the courts turn that suspicious eye on the state and demand they prove it’s really okay. This is hard for a state to do. The process is called “heightened scrutiny,” meaning the court will really give the law a thorough going-over.
So: Rational basis (weight)=easy for a state to defend; they will get the benefit of the doubt
Heightened scrutiny (race or gender)=hard for a state to defend (they will not have the benefit of the doubt)
For now, sexual orientation is in the first category, not the second. Many people (including me!) expect that to change.
Thank you for a very clear explication. I will probably bookmark this page for future reference.
But I think I disagree with this bit that I have quoted, now that I understand the other stuff better. If “Rational” did mean “Not stupid” in this context, it would be a much more ambiguous standard, relying on the questionable judgment of a lot of different judges, instead of the questionable judgment of legislators. Democratic theory would not be in favor of that kind of change, I think. It might work better in practice sometimes, but it would be unreliable.
Well, “rational basis” for most of us would have to mean “is rational.” But in practice, courts haven’t required that laws be logically rational at all for accomplishing the goal. The state says “Oh, we ban SSM for the children!” and the court doesn’t say “Yeah, how does that work?” the court says “Okey dokey! That’s a great goal!” Those of us who can’t figure out how it helps children think “But that doesn’t make sense.” That’s what I meant by feeling laws shouldn’t be stupid. They should have to provide some sort of mechanism for accomplishing their goal.
Not constitutionally. As with age, disability discrimination is prohibited by federal law, but not by the constitution. (Unlike racial discrimination and a handful of others.)
To use an extreme example, the law treats convicted criminals unequally from people who have not been convicted of a crime, in that convicted criminals can be confined to prison. On its face, this is a violation of equal protection. Convicted criminals are not a protected class, however, and there is a rational basis for treating them differently in this way, so confinement of a convicted criminal to prison is not a constitutional violation.
Indeed, laws discriminating on the basis of sexual orientation are very nearly the only ones I know of that have been invalidated under rational basis review. When that first began to happen, there was some commentary suggesting that the S.Ct. was applying heightened scrutiny (i.e., treating the cases as involving a protected class) without saying so.
It’s more complicated than that. The S.Ct. has articulated several factors for determining who is a protected class under the Constitution:
[ul]
[li]The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes[/li][li]They possess an immutable and/or highly visible trait.[/li][li]They are powerless to protect themselves via the political process. (The group is a “discrete” and “insular” minority.)[/li][li]The group’s distinguishing characteristic does not inhibit it from contributing meaningfully to society.[/li][/ul]
Thus far, race, national origin, religion and alienage have been designated the most suspect classes and laws discriminating on these bases receive the highest level of scrutiny. (Caveat: Alienage is a suspect class only as to state law, and not when Congress legislates).
Sex and legitimacy of birth are intermediate classes and receive somewhat higher scrutiny.
Sexual orientation has not been held to be a protected class, but its status is somewhat unusual. A state or locality is not obliged to ban discrimination on the basis of sexual orientation, but if it does so, the holding in Romer v. Evans suggests that it then cannot constitutionally repeal that ban.
Not to be snarky or anything, but I’m surprised you’ve been here since 2005 and have not seen the many, many times when the various lawyers on this board explained what “ration basis” means as a term of art in the legal profession. But keep in mind that even though it has a meaning, that meaning can be a bit fuzzy, with some legal scholars arguing over how to apply it.
And there is the so-called “rational basis with teeth” thingy that has sprung up in recent years.
At any rate, just do a search in GD for the term and you’ll see at least a dozen threads (many about SSM) where that term is discussed in detail.
If you’re talking constitutionally. There are also protected classes covered by statutes like the ADA. But SSM is a constitutional issue, since the plaintiffs are trying to get the laws against it nullified as unconstitutional.
Disability has not been found by the SCOTUS as a protected class involving heightened scrutiny for its constitutionality. Disability has been found by Congress as a protected class via the ADA. They are different issues and different sources of the protection. Constitutional protection is more vigorous, since the constitution cannot just be changed tomorrow by congress. The ADA could, theoretically, be changed tomorrow if congress really really wanted to.
I’ve read many of those, and while I may have grasped some or all of the nuances at the time, I have not been able to retain them. Not sure why, perhaps my mind was fighting against the notion of “rational” not meaning what it sounds like; or maybe I’m just not very bright. Maybe I don’t like reading stuff from lawyers (if jsgoddess is a lawyer, she sure doesn’t write like one). In any case, I think I finally get it now.
Sometimes, it just takes repetition or precisely the right language. I’m still awaiting the day when an explanation of house wiring will make sense and stick in my head.
The latest ruling from the Court of Appeals for the Seventh Circuit struck down the bans in Indiana and Wisconsin. The ruling is a good study of the reasoning and whys of protected classes.
It goes on from there and show how it tries to balance the benefits to greater society against those of the minority.