# Move over NY Court of Appeals, there's a new supreme court to get fucked **URL:** \ **Category:** The BBQ Pit\ **Created:** [July 26, 2006, 3:52pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098 "2006-07-26T15:52:46Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![zagloba](https://avatars.discourse-cdn.com/v4/letter/z/977dab/32.png) [@zagloba](https://boards.straightdope.com/u/zagloba)\ **Post date:** [July 27, 2006, 6:03am UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/21 "2006-07-27T06:03:46Z")
[QUOTE=Polycarp] **At this point** there is precedent saying that state DOMAs are constitutional, part of it (that Godawful SCOTUS denial of cert. case) possibly binding. [/QUOTE] My understanding is that denial of cert does not in any way establish precedent. Am I wrong? ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [July 27, 2006, 6:05am UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/22 "2006-07-27T06:05:55Z")
Bit of a hijack, but this bit from the opinion: > [@](#): > > Justice J.M. > Johnson’s concurrence, like Justice Fairhurst’s dissent, also ignores the > proper standards for reviewing legislation. And readers unfamiliar with > appellate court review may not realize the extent to which this concurrence > departs from customary procedures because, among other things, it merely > repeats the result and much of the reasoning of the court’s decision on > most issues, thus adding unnecessarily to the length of the opinions. seemed really harsh. A total pitting if you ask me. 🙂 -FrL- ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [July 27, 2006, 6:11am UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/23 "2006-07-27T06:11:43Z")
A comment with a question, and a further question: Comment: I read the first half of the opinion, and it appears to me it is based on laws local to Washington, including Washington’s constitution. I didn’t see mention of the Federal constitutionality issues. Seems to me, if I’m right in reading the decision this way, then this isn’t the end of the story–the next question could be whether Washington’s constitution is in line with the Federal constitution. Can this case continue and appeal on up that ladder? Question: Isn’t there a totally separate legal argument based, not on the question of whether a minority is being denied a right, but instead on the question of whether denying homosexuals the right to marry each other constitutes gender discrimination? (If I were gay and wanted to marry a guy, and you told me I couldn’t marry a guy, that would be disallowing us to enter into a contract based on our gender.) Has that one been tried in the courts? -FrL- ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 27, 2006, 12:31pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/24 "2006-07-27T12:31:47Z")
[QUOTE=Frylock] A comment with a question, and a further question: Comment: I read the first half of the opinion, and it appears to me it is based on laws local to Washington, including Washington’s constitution. I didn’t see mention of the Federal constitutionality issues. Seems to me, if I’m right in reading the decision this way, then this isn’t the end of the story–the next question could be whether Washington’s constitution is in line with the Federal constitution. Can this case continue and appeal on up that ladder? Question: Isn’t there a totally separate legal argument based, not on the question of whether a minority is being denied a right, but instead on the question of whether denying homosexuals the right to marry each other constitutes gender discrimination? (If I were gay and wanted to marry a guy, and you told me I couldn’t marry a guy, that would be disallowing us to enter into a contract based on our gender.) Has that one been tried in the courts? -FrL- [/QUOTE] I can give you a quick and dirty answer to the first half: whenever a “Federal question” is raised, the U.S. Federal courts have the right to intervene. (Ask a lawyer to describe the various ways in which this can happen.) When the arguments raised are 100% relative to state issues, including the constitutionality of a statute under the state constitution, the state’s high court is the final authority. SCOTUS has no more right to overturn _Goodridge_ in Mass. or this case (presuming I’m not missing a Federal question myself) than it does to overturn _Crown v. McTavish_ in the Scots courts. A “Federal question” arises when one side raises an argument that is (1) founded in the U.S. Constitution or statutes and (2) the case is not resolvable _in accord with that argument_ by reference exclusively to state law. There have been a number of arguments on what constitutes due process and equal protection, over in GD, including the discrimination on the basis of sex one you suggest here. I have virtually no desire to try to summarize the [del]trainwrecks[/del] complex discussions that resulted. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 27, 2006, 1:21pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/25 "2006-07-27T13:21:10Z")
[QUOTE=Bricker] So if the remaining state supreme courts issue similar opinions… they are all wrong, and you’re right? [/quote] Yeah, pretty much. If they cling to rational review when the correct standard is heightened scrutiny, or if they continue to pretend that encouraging straights to procreate is a legitimate reason for preventing gay couples from marrying, then yes, they are all wrong and I am right. > [@Frank](#): > > Otto, the message is quite clear. Same-sex marriage is not going to fly in the courts. Period. Really, no matter how much we complain, it won’t. As I said, in two of the five states with final SC rulings, it flew. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [July 27, 2006, 1:24pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/26 "2006-07-27T13:24:48Z")
My favorite quote from the dissent of J. Bridge: > [@](#): > > Whatever bases the plurality and Justice J.M. Johnson’s concurrence assert tosupport the DOMA, the legislative history of the law reveals that it stems, in substantial part, from thinly-veiled animosity against a minority group, animosity that is rooted in moral and religious objections to same-sex relationships. Its very title asserts as much – “defense” of marriage – “defense” from what? Against whom? The DOMA ought to be recognized for the discriminatory enactment that it is, and rejected as such. To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA. I also liked this one from J. Fairhurst: > [@](#): > > Therefore, the question we are called upon to ask and answer here, which the plurality fails to do, is how excluding committed same-sex couples from the rights of civil marriage furthers any of the interests that the State has put forth. Or, put another way, would giving same-sex couples the same right that opposite-sex couples enjoy injure the State’s interest in procreation and healthy child rearing? I think these quotes are the best example of a judiciary actually addressing the animus against gays and lesbians that runs the anti-SSM crowd that led to the enaction of Washington’s DOMA statute. DOMA isn’t about, no matter how the majority or others try to pretty it up, creating positive places to raise children or helping procreation, it’s about the bigoted hatred of gays. I believe it is J. Bridge’s dissent that gives numerous, concrete examples in the legislative history about this animus, including the typical blather about SSM somehow disparaging opposite sex marriage and homosexuals being sinful. It’s a very depressing, yet necessary, read, as he says: > [@](#): > > Yet the DOMA’s legislative history reveals that what the proponents of the legislation intended was to impose religious and moral restrictions on the state regulated civil institution of marriage. In addition, there is ample evidence in the legislative history that the DOMA’s supporters were motivated by animus, an undisguised desire to discriminate against gays and lesbians. Each of these purposes has been rejected by the United States Supreme Court as illegitimate interests that cannot support legislation targeting a minority group. Even if you accept the pretty, judicial face of discrimination, what is the purpose of the DOMA statute? As Fairhurst states: > [@](#): > > The plurality and concurrence condone blatant discrimination against Washington’s gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests. As to the majority opinions, the only thing that surprised me was the constant repeating of the mantra that the times are changing, which, if I remember correctly, was a major cause of consternation regarding the Lawrence decision. I also liked their self-serving circular logic when they stated: “Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing”, as if the inclusion of other rights somehow defines the limits of the right to marry. Again, defining a right simply by limiting it to those who have traditionally enjoyed it isn’t "“exhaustive constitutional inquiry”. Finally I may have missed it in skimming it over, but I missed the part of the majority where they explain how they reached the conclusion that “The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State’s legitimate interests in procreation and the well-being of children.” I’ll leave with one more quote: > [@dissent](#): > > Bare {legislative} desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." . ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2006, 3:22pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/27 "2006-07-27T15:22:59Z")
[QUOTE=Hamlet] DOMA isn’t about, no matter how the majority or others try to pretty it up, creating positive places to raise children or helping procreation, it’s about the bigoted hatred of gays. [/quote] > [@Washington Supremes](#): > > The plaintiffs have not established that they are > members of a suspect class or that they have a fundamental right to > marriage that includes the right to marry a person of the same sex. > Therefore, we apply the highly deferential rational basis standard of > review to the legislature’s decision that only opposite-sex couples are > entitled to civil marriage in this state. Under this standard, DOMA is > constitutional because **the legislature was entitled to believe that > limiting marriage to opposite-sex couples furthers procreation, essential > to survival of the human race, and furthers the well-being of children by > encouraging families where children are reared in homes headed by the > children’s biological parents**. Hamlet, the court disagrees. They found, CORRECTLY, that under the rationla basis test proceation is, effectively, what DOMA is about. Your continual denial of this is astonishing, considering that the law of the state of Washington is now firmly established to the contrary. > [@](#): > > Finally I may have missed it in skimming it over, but I missed the part of the majority where they explain how they reached the conclusion that “The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State’s legitimate interests in procreation and the well-being of children.” Why isn’t this self-evident? Marriage, its stability, and its financial benefits all create a more welcoming environment in which to raise a child. Opposite sex couples can generally create a child on their own, without recourse to outside assistance. (And please - before the chorus starts - if anyone asks, “Then why let sterile couples marry?” or similar nonsense, the answer is that the rationla basis test does not inquire if the legilsature is choosing the best, or most comprehensive, or wisest, solution given its assumptions. So asking why there are not other laws surrounding this is merely a display that you don’t understand the rational basis test.) Why the court needs to spell this out for you is unclear to me, but there it is. That’s the RATIONAL BASIS. Now, one of **Otto** ’s points is a valid one: why is rational basis the correct standard of review? If intermediate scrutiny is avaliable for gender discrimination claims, why not here? The only reason is that the Supreme Court created the standard of intermediate review, and they did so only in gender cases. It would make perfect sense to extend it here, but that hasn’t been done. The court here correctly applied the rational basis test. I agree that the intermediate scrutiny standard would make sense here. But there is no precedent for it. ---
**Author:** ![JustAnotherGeek](https://avatars.discourse-cdn.com/v4/letter/j/58f4c7/32.png) [@JustAnotherGeek](https://boards.straightdope.com/u/JustAnotherGeek)\ **Post date:** [July 27, 2006, 3:47pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/28 "2006-07-27T15:47:01Z")
Just out of curiousity: We keep talking about the number of Supreme Courts that have decided one way or another. But, as has been noted here, each court is a combination of voices from individuals with their own evaluation of the cases. What has been the number of _justices_ that have voiced: Against the plantiffs (i.e. against SSM) (Possibly subdivded into explicitly voicing dissapproaval with the laws and not) For the plantiffs (i.e. in support of SSM) IOW, I don’t think these issues are clear cut even within the individual courts, let alone from state to state. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2006, 3:51pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/29 "2006-07-27T15:51:52Z")
[QUOTE=zagloba] My understanding is that denial of cert does not in any way establish precedent. Am I wrong? [/QUOTE] I suspect **Polycarp** is actually referring to **Baker v. Nelson** , 409 U.S. 810 (1972). The Minnesota Supreme Court ruled that the Minnesota law restricting marriage to opposite-sex couples did not violate either the Minnesota or the United States Constitution. On appeal, the US Supreme Court did not deny cert – instead, they dismissed the appeal for want of a substantial federal question. Such a dismissal DOES carry precedential weight. The Supreme Court has said, in a manner binding on the whole country, that the federal constitution does not require recogition of same-sex marriage. **Otto** – not sure which five you’re counting — was Minnesota one of them? They settled this in 1971, so it may not have been on your radar. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [July 27, 2006, 3:54pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/30 "2006-07-27T15:54:18Z")
[QUOTE=Bricker] Hamlet, the court disagrees. They found, CORRECTLY, that under the rationla basis test proceation is, effectively, what DOMA is about. Your continual denial of this is astonishing, considering that the law of the state of Washington is now firmly established to the contrary. [/quote] Oh please. Tell me in your infinite wisdom why DOMA was enacted? All those people concerned about the procreative ability of those entering marriage? So much concern over child rearing that they would deny same sex partners the power to more easily help raise children? Do you sincerely believe the movement against SSM marriage is based on those wonderful objectives so prettily dolled up for the court? Are you that delusional? Hell, even the majority had the brains to say the legislature \*\*was entitled to \*\* believe, not that they did. It was nothing but “an undisguised desire to discriminate against gays and lesbians.” > [@Bricker](#): > > Why isn’t this self-evident? Marriage, its stability, and its financial benefits all create a more welcoming environment in which to raise a child. Opposite sex couples can generally create a child on their own, without recourse to outside assistance. Why the court needs to spell this out for you is unclear to me, but there it is. That’s the RATIONAL BASIS. It’s a great argument for marriage. I think the stability, financial benefits, rights and privileges of marriage certainly are legitimate governmental interests, and marriage furthers those interests. What DOMA does is deny those things to same sex couples. What is it about those interests that are served by EXCLUDING homosexuals from marriage? > [@Bricker](#): > > Now, one of **Otto** ’s points is a valid one: why is rational basis the correct standard of review? If intermediate scrutiny is avaliable for gender discrimination claims, why not here? > > The only reason is that the Supreme Court created the standard of intermediate review, and they did so only in gender cases. It would make perfect sense to extend it here, but that hasn’t been done. The court discussed why not, and it seems to me they put a lot of stock in the fact that there is no proof that homosexuality is “immutable” to allow them to claim suspect class status. Heck, maybe after another 50 years of denying homosexuals equal rights, we can claim they’re now a suspect class. > [@Bricker](#): > > The court here correctly applied the rational basis test. The court accepted a prettied up version of lies and applied a toothless “test” and allowed the discrimination to continue. While I took solace in their repetition about how poor this law is, and their subtle hints that they may take action in the future if nothing is done, I still think they’re wrong. In the realm of protection of minorities, I don’t believe the judiciary should be a rubber stamp. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 27, 2006, 4:40pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/31 "2006-07-27T16:40:11Z")
[QUOTE=Bricker] The court here correctly applied the rational basis test. I agree that the intermediate scrutiny standard would make sense here. But there is no precedent for it. [/QUOTE] The precedent from the Hawaii case is that (before the bigots of the state amended the constitution) the marriage ban was subject to strict scrutiny. So it’s not as if the idea of some other level of scrutiny besides rational basis is unheard of. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 27, 2006, 5:03pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/32 "2006-07-27T17:03:07Z")
[QUOTE=Bricker] **Otto** – not sure which five you’re counting — was Minnesota one of them? They settled this in 1971, so it may not have been on your radar. [/QUOTE] I know of the Baker decision but in sitting here trying to recall what five states I was talking about I honestly can’t remember. So let’s see, there’s MN (loss), VT (win on marriage rights, but not marriage), MA (win) HI (win, overturned by bigoted referendum), NY (loss), WA (loss)…oh this is just goofy, I used to be able to fire this stuff off like a machine gun. Am I forgetting a state? New Jersey has a case pending and California cases are working their way up. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [July 27, 2006, 6:45pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/33 "2006-07-27T18:45:58Z")
[QUOTE=Bricker] Now, one of **Otto** ’s points is a valid one: why is rational basis the correct standard of review? If intermediate scrutiny is avaliable for gender discrimination claims, why not here? The only reason is that the Supreme Court created the standard of intermediate review, and they did so only in gender cases. It would make perfect sense to extend it here, but that hasn’t been done. [/QUOTE] Two nitpicks - I believe that intermediate scrutiny also applies to illegitimacy. And Washington state uses strict scrutiny for gender classifications under our state constitution. Neither of which facts have any bearing on the court’s determination that rational basis applies to this case. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 27, 2006, 10:00pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/34 "2006-07-27T22:00:22Z")
[QUOTE=Bricker] Hamlet, the court disagrees. They found, CORRECTLY, that under the rationla basis test proceation is, effectively, what DOMA is about. Your continual denial of this is astonishing, considering that the law of the state of Washington is now firmly established to the contrary. [/QUOTE] And the laws against miscegenation were to protect “mixed” children from being teased. Unless the legislature seriously believes that all gays are going to go rush out, marry someone of the opposite sex, and have children, all thanks to not being allowed to marry the person of their choice, then no, the legislature was not entitled to believe that denying same-sex marriage furthers procreation. In fact, they’d have to be very very very stupid, more stupid than even the stupidest congressperson currently is (and we’re not talking pole vault heights here) to believe that. This is what we non-lawyer types call an “out.” Basically it boils down to “I’m a bigot, but if I admit that that’s my reasoning, then this might get overturned by them activist judge folks.” 100 couples who wish to get married, 10 of them are gay. Gay marriage is legal. 70 of the 90 married heterosexual couples have 2 children each. We have 140 children. 3 of the 10 gay couples use IVF, surrogates, etc., to have 2 children each. 146 children total. 100 couples who wish to get married. 10 of them are gay. Gay marriage is illegal. 70 of the 90 married heterosexual couples have 2 children each (unless you want to defend the legislature and tell me why not). We have 140 children. 1 of the 10 gay couples decides that even without marriage, they want a kid, hoping that the child will one day have the same rights in regards both parents as the child of a heterosexual couple. Via IVF, surrogate, etc., they have 2 children. 142 children total. Allowing gay marriage furthers procreation. Banning it either breaks even, or hinders it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2006, 10:56pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/35 "2006-07-27T22:56:32Z")
[QUOTE=Hamlet] Oh please. Tell me in your infinite wisdom why DOMA was enacted? All those people concerned about the procreative ability of those entering marriage? So much concern over child rearing that they would deny same sex partners the power to more easily help raise children? Do you sincerely believe the movement against SSM marriage is based on those wonderful objectives so prettily dolled up for the court? Are you that delusional? [/quote] That’s why I said: “This is, **effectively** , what DOMA is about.” Under the rational basis test, we don’t inquire into what the motives of the legislature actually were. We ask instead if there is any rational basis that the legislature might rely upon in reaching the decision they did. This is the correct deference to elected officials. I am sure that in many legislator’s minds, there were nothing but base and ignoble motives. But so what? As a judge, I CANNOT take that opinion and use it to overturn the legislation. > [@](#): > > It’s a great argument for marriage. I think the stability, financial benefits, rights and privileges of marriage certainly are legitimate governmental interests, and marriage furthers those interests. What DOMA does is deny those things to same sex couples. What is it about those interests that are served by EXCLUDING homosexuals from marriage? If extending those benefits to any given couples costs the state government $X, then excluding same-sex couples makes sense, since only the opposite-sex couples may produce their own children. > [@](#): > > The court accepted a prettied up version of lies and applied a toothless “test” and allowed the discrimination to continue. While I took solace in their repetition about how poor this law is, and their subtle hints that they may take action in the future if nothing is done, I still think they’re wrong. In the realm of protection of minorities, I don’t believe the judiciary should be a rubber stamp. The judiciary should interpret existing law. Not make new law, even if the goal is as noble as protecting minorities. The legislature makes law, including the law that says we should protect minorities. The judiciary then interprets and applies the law to sets of facts that come before it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 27, 2006, 11:03pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/36 "2006-07-27T23:03:46Z")
[QUOTE=Otto] The precedent from the Hawaii case is that (before the bigots of the state amended the constitution) the marriage ban was subject to strict scrutiny. So it’s not as if the idea of some other level of scrutiny besides rational basis is unheard of. [/QUOTE] FAir enough – and as I’ve said many times, under even intermediate scrutiny, not to mention strict, these laws fail. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 27, 2006, 11:56pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/37 "2006-07-27T23:56:30Z")
[QUOTE=Bricker] That’s why I said: “This is, **effectively** , what DOMA is about.” Under the rational basis test, we don’t inquire into what the motives of the legislature actually were. We ask instead if there is any rational basis that the legislature might rely upon in reaching the decision they did. This is the correct deference to elected officials. I am sure that in many legislator’s minds, there were nothing but base and ignoble motives. But so what? As a judge, I CANNOT take that opinion and use it to overturn the legislation. [/quote] So the legislature passes a law which clearly has no effect but to discriminate on the basis of sex or sexual orientation, and through the rhetoric surrounding the passage admit that the law is motivated by nothing other than base and ignoble motives, but if a judge can think up on his own a reason for the law that isn’t base and ignoble the law stands, despite the legislature never once suggesting the judge’s possible reason as having ever been remotely considered, because the legislature _could have believed it_ if they’d thought of it. And it’s the judges who agree with _my_ side who are “activist.” Uh huh. > [@Bricker](#): > > The judiciary should interpret existing law. Not make new law, even if the goal is as noble as protecting minorities. Striking down a law as unconstitutional is not “making new law.” Had the WA SC stuck down DOMA, Washington would have had fewer laws, not more. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [July 28, 2006, 12:05am UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/38 "2006-07-28T00:05:15Z")
[QUOTE=Otto] So the legislature passes a law which clearly has no effect but to discriminate on the basis of **sex or sexual orientation** , and through the rhetoric surrounding the passage admit that the law is motivated by nothing other than base and ignoble motives, but if a judge can think up on his own a reason for the law that isn’t base and ignoble the law stands, despite the legislature never once suggesting the judge’s possible reason as having ever been remotely considered, because the legislature _could have believed it_ if they’d thought of it. And it’s the judges who agree with _my_ side who are “activist.” Uh huh. [/QUOTE] (my bolding) “Sexual orientation” - yes, that’s the law (although the Washington court also noted that no proof had been offered that orientation was an immutable characteristic, and suggested that their result would change if that were proved to the satisfaction of the court) “Sex” - no, that’s not the law ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 28, 2006, 1:07am UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/39 "2006-07-28T01:07:41Z")
[QUOTE=Otto] So the legislature passes a law which clearly has no effect but to discriminate on the basis of sex or sexual orientation, and through the rhetoric surrounding the passage admit that the law is motivated by nothing other than base and ignoble motives, but if a judge can think up on his own a reason for the law that isn’t base and ignoble the law stands, despite the legislature never once suggesting the judge’s possible reason as having ever been remotely considered, because the legislature _could have believed it_ if they’d thought of it. And it’s the judges who agree with _my_ side who are “activist.” Uh huh. [/quote] In general, yes – although I’ve certainly seen some activist judges on the right. Sadly, the desire to implement your own views into the law while wearing robes is not limited to liberals; conservatives have been just as guilty. But what you describe above is the process of letting the right branch of government make law. This HAS to be the right level of deference, because if you permit judges to say, as you do above, “This law clearly was motivated by X,” and thus strike it down, you give to judges a power they should not have in a representative democracy. **Otto** , you’re all about the result here. If we gave judges this power you’re urging, and some bigoted, homophobic judge used it to strike down laws designed to ensure equality for homosexuals, you’d be up in arms about that. You’re urging an approach that says, basically, “Let’s see what the right result is, and then get there, by any means necessary.” I take a different view. I want same-sex marriage to be legal. But I don’t want to do it by giving judges a pwer they shouldn’t have, because I believe they’ll use it to our detriment later on. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 28, 2006, 1:14am UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/40 "2006-07-28T01:14:57Z")
[QUOTE=Bricker] But what you describe above is the process of letting the right branch of government make law. This HAS to be the right level of deference, because if you permit judges to say, as you do above, “This law clearly was motivated by X,” and thus strike it down, you give to judges a power they should not have in a representative democracy. [/QUOTE] In your opinion, what would it take to justify bumping up the level of scrutiny applied to laws affecting sexual orientation? [Previous page](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098.md?page=1) [Next page](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098.md?page=3)