# 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:** 4
**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, 6:13pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/61 "2006-07-28T18:13:25Z")
[QUOTE=stretch] Yep, it is. Never said it wasn’t. [/quote] But you used that as an analogy, and incorrectly so. > [@](#): > > I find the immutable characteristic reasoning lacking. YMMV. Personally, I do, too. But the court said that the proponents of lifting the bad did not present evidence that it wasn’t immutable. It’s not up to the court to go out and seek that information. ---
**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 28, 2006, 8:38pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/62 "2006-07-28T20:38:31Z")
[QUOTE=Bricker] If you were the person who could authoritatively interpret the state or federal constitutions, this might mean something. But for you to insist they mean X, when the guys that actually determine what they mean reach conclusion Y… continuing to insist that X is correct is somewhat quixotic. [/QUOTE] I completely disagree. I’m pretty sure everyone here is very aware of what this decision means from a legal standpoint, but that’s not what we’re debating. We’re debating whether they reached the CORRECT decision, and therefore interpretations of the constitution are just as important to this as the actual decision itself. You stated earlier that they correctly found that procreation is effectively what DOMA is about. I’d like a cite that DOMA says anything at all remotely resembling procreation. If you wish to debate whether Washington state currently allows gay marriage from a legal standpoint, it will be a damned short debate (they don’t, but I think we all knew that already). Many of us wish to debate whether the court made a valid decision, based on the constitution of the state in question. In other words, does the constitution of the state of Washington negate the statute prohibiting gay marriage? To many of us, the answer is yes. Perhaps it should be noted that state constitutions weren’t written by the local bar associations, and that non-lawyers are just as capable of reading them and interpreting them as any lawyer. We might not affect the legal outcome, but that doesn’t make us wrong. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 28, 2006, 9:17pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/63 "2006-07-28T21:17:02Z")
[QUOTE=Bricker] If you were the person who could authoritatively interpret the state or federal constitutions, this might mean something. But for you to insist they mean X, when the guys that actually determine what they mean reach conclusion Y… continuing to insist that X is correct is somewhat quixotic. [/QUOTE] If people didn’t sometimes quixotically insist that X=X then separate but equal would be the law of the land, blacks couldn’t marry whites and sodomy would be a criminal offense in Texas. ---
**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, 11:37pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/64 "2006-07-28T23:37:31Z")
[QUOTE=DMC] I completely disagree. I’m pretty sure everyone here is very aware of what this decision means from a legal standpoint, but that’s not what we’re debating. We’re debating whether they reached the CORRECT decision, and therefore interpretations of the constitution are just as important to this as the actual decision itself. You stated earlier that they correctly found that procreation is effectively what DOMA is about. I’d like a cite that DOMA says anything at all remotely resembling procreation. If you wish to debate whether Washington state currently allows gay marriage from a legal standpoint, it will be a damned short debate (they don’t, but I think we all knew that already). Many of us wish to debate whether the court made a valid decision, based on the constitution of the state in question. In other words, does the constitution of the state of Washington negate the statute prohibiting gay marriage? To many of us, the answer is yes. Perhaps it should be noted that state constitutions weren’t written by the local bar associations, and that non-lawyers are just as capable of reading them and interpreting them as any lawyer. We might not affect the legal outcome, but that doesn’t make us wrong. [/QUOTE] Yes, it does make you wrong. The final authority for determining what a state constitution means is the supreme court of the state. It’s not an opinion poll, with everyone’s voice equally valid. Now, we DO have what you’re wishing for: it’s called voting. That’s when the citizens’ collective opinions matter greatly. And THAT is the mechanism by which same-sex marriage should be enacted. ---
**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 29, 2006, 4:22am UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/65 "2006-07-29T04:22:22Z")
[QUOTE=Bricker] Yes, it does make you wrong. The final authority for determining what a state constitution means is the supreme court of the state. It’s not an opinion poll, with everyone’s voice equally valid. [/QUOTE] Naw, that still doesn’t make me wrong. The supreme courts determine what it “legally” means, but that doesn’t make them right (nor wrong). > [@](#): > > Now, we DO have what you’re wishing for: it’s called voting. That’s when the citizens’ collective opinions matter greatly. Actually, we do have what I’m wishing for, a judiciary. They’re just not always perfect, and don’t often work in a vacuum, as much as they’d like us to think so. They are supposed to uphold the constitution, even when the citizen’s collective opinions (and their representatives) go against the constitution. For better or worse, they’re not infallible in performing their duties. > [@](#): > > And THAT is the mechanism by which same-sex marriage should be enacted. Sure, the legislature should formally declare same-sex marriage valid, but there is a reason the various courts exist. One of them is to determine the constitutionality of what the legislature throws out there. Sometimes they get it right, sometimes they get it wrong. In the end, their word is the law, but again, that doesn’t make them right (nor wrong). ---
**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 29, 2006, 1:26pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/66 "2006-07-29T13:26:58Z")
[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? [/quote] Interesting judicial philosophy you got there. Once again, I thank heavens you’re not a judge. > [@Bricker](#): > > As a judge, I CANNOT take that opinion and use it to overturn the legislation. I’ll remember that. The intent of the legislature has no place in constitutional interpretation. Gotcha. As an important aside, do you think that laws continuing the enforcement of sexual mores would meet the rational basis. Seems to me that, in your view, even if the only reason for the legislation was to make homosexuals’ lives harder, that too would be a rational basis. DOMA is intented to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws, which, seems to me, would provide a rational basis. Do you agree? > [@Bricker](#): > > 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. _Snort_ Yeah, I guess that’s it. SSM would be too expensive on the state, and the legislatures in Washington were concerned about spending too much. Tell me honestly, do you actually believe that stuff? Do you think financial responsibility is a motivating factor behind anti-SSM? Just don’t look beyond the pretty face that anti-gay crowd puts on anti-SSM, and you won’t have to see reality. I hear inserting your fingers in your ears and chanting “Lalalalalal” helps too. Is there anything that doesn’t pass your rational basis test? Forced sterilization of the mentally ill? Anti-miscegenation laws? Forced weight loss for the fat? How about a law that denies marriage to people who have black hair, that’ll save the state money? How about a law that says people who owe child support, or that have been married before, can no longer get married. How about a law that denies health care benefits to left handed persons? No matter how much the legislation works to the detriment of a group, or how motivated by bigoted hatred for a group the legislation is, as long as someone, somewhere can create a reason out of whole cloth, the courts will look aside. That sure is some check on the power of the legislature there. :rolleyes: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 29, 2006, 2:23pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/67 "2006-07-29T14:23:15Z")
[QUOTE=Hamlet] No matter how much the legislation works to the detriment of a group, or how motivated by bigoted hatred for a group the legislation is, as long as someone, somewhere can create a reason out of whole cloth, the courts will look aside. That sure is some check on the power of the legislature there. :rolleyes: [/QUOTE] If you were taking the bar exam again, **Hamlet** , and you had a question on the rational basis test… would you describe it the way I’m describing it, or they way you’re describing it here in this thread? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 29, 2006, 2:25pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/68 "2006-07-29T14:25:01Z")
[QUOTE=DMC] In the end, their word is the law, but again, that doesn’t make them right (nor wrong). [/QUOTE] Fallacy of equivocation, although on your part or mine, I’m not sure. Why don’t I simply say that their word is definitively ACCURATE. Whether it’s right or wrong I leave to your own moral code. ---
**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 29, 2006, 2:33pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/69 "2006-07-29T14:33:01Z")
[QUOTE=Bricker] If you were taking the bar exam again, **Hamlet** , and you had a question on the rational basis test… would you describe it the way I’m describing it, or they way you’re describing it here in this thread? [/QUOTE] Maybe you should give a run at law professor, or, better yet, politician. The ability to ignore points and questions in favor of asking your own set of questions will serve you well. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 29, 2006, 3:01pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/70 "2006-07-29T15:01:48Z")
[QUOTE=Hamlet] Maybe you should give a run at law professor, or, better yet, politician. The ability to ignore points and questions in favor of asking your own set of questions will serve you well. [/QUOTE] I believe it’s you that are ignoring what I am saying. You keep asking me if I believe that X or Y is _REALLY_ the motivation behind anti-SSM laws. I keep explaing that this is not a relevant inquiry; that the question is not what they were thinking, but if a rational basis for their actions can be imagined. Since you keep rejecting that formula (without explicitly saying you are rejecting it) I sought to approach the issue from another direction: to ask you if you were in a position where you were presumably forced to give a precisely accurate answer about how the rational basis test works – how would you respond? You’ve completely ignored that query as well. I’m happy to actually answer your questions, but considering that your questions are NOT part of the rational basis formula, it perplexes me what you hope to uncover by their answers. > [@](#): > > As an important aside, do you think that laws continuing the enforcement of sexual mores would meet the rational basis. Seems to me that, in your view, even if the only reason for the legislation was to make homosexuals’ lives harder, that too would be a rational basis. DOMA is intented to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws, which, seems to me, would provide a rational basis. Do you agree? No. If that were the only imaginable rationale behind a legislature’s actions, that would fail the test, as _Romer_ teaches us. > [@](#): > > _Snort_ > Yeah, I guess that’s it. SSM would be too expensive on the state, and the legislatures in Washington were concerned about spending too much. Tell me honestly, do you actually believe that stuff? Do you think financial responsibility is a motivating factor behind anti-SSM? Just don’t look beyond the pretty face that anti-gay crowd puts on anti-SSM, and you won’t have to see reality. I hear inserting your fingers in your ears and chanting “Lalalalalal” helps too. Do I believe that finance was at the heart of every legislator’s decision? No, not remotely. But again: irrelevant to the rational basis test. > [@](#): > > Is there anything that doesn’t pass your rational basis test? Forced sterilization of the mentally ill? Anti-miscegenation laws? Forced weight loss for the fat? How about a law that denies marriage to people who have black hair, that’ll save the state money? How about a law that says people who owe child support, or that have been married before, can no longer get married. How about a law that denies health care benefits to left handed persons? Forced sterilization: no. _Skinner v. Oklahoma_. Anti-miscegenation laws: irrelevant question; racial classifications don’t get analyzed under the rational basis test. Forced weight loss for the fat: don’t know. “The fat” are not a protected class, so any legislation would presumably be analyzed under the rational basis test. The constitution is not a bastion against unwise legislation. The child support issue has been answered already by the Court in the negative, although the case style escapes me at the moment. The black hair business would likely be kicked under the “deeply rooted in our nation’s history and tradition” rubric. As would the left-handed persons one, since for all of our nation’s history both black hair and left-handedness have been free from being singled out. The black hair also might be found to be a back door to racial discrimination. I have answered all your questions. Now answer me honestly. If you were taking the bar, how would you be describing the rational basis test? Would your answer look closer to what I’m saying in this thread, or what you’re saying in this thread? ---
**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 29, 2006, 3:49pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/71 "2006-07-29T15:49:47Z")
[QUOTE=DMC] Naw, that still doesn’t make me wrong. The supreme courts determine what it “legally” means, but that doesn’t make them right (nor wrong). [/QUOTE] It makes them right legally. Did you think anyone was talking about them being “right” morally? The courts aren’t supposed to determine the morality of a law, only the legality of that law. Wouldn’t you agree? ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 29, 2006, 4:01pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/72 "2006-07-29T16:01:59Z")
[QUOTE=Bricker] The child support issue has been answered already by the Court in the negative, although the case style escapes me at the moment. [/quote] Zablocki v Redhail. Convicted felons also have the right to marry, under Turner v Safley. So nice to live in a nation which values the rights of convicted murderers and deadbeat dads more than mine. ---
**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 29, 2006, 4:02pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/73 "2006-07-29T16:02:33Z")
[QUOTE=Bricker] I’m happy to actually answer your questions, but considering that your questions are NOT part of the rational basis formula, it perplexes me what you hope to uncover by their answers. [/quote] You treat the “rational basis test”, intermediate scrutiny, and strict scrutiny as if they were Constitutionally mandated, and not a creation of the judiciary to aid in the interpretation of the Constitution. The rational basis test itself has been applied with varying degrees of intensity, from abject deference to the bigotry to the majority, to the more searching inquiry in _Cleburne_ and _Romer_. I’m trying to place your philosophy on that spectrum, to pinpoint how much deference you will give and how far out of the realm of reality you are willing to go to find a legitimate governmental interest and a “rational” connection between that basis and the classification. I’m also trying to determine whether your rational basis differs when applied to civil rights issues or protection of the minority. So far, I think I’ve determined that you grant near-infinite deference, and are more than willing to overlook reality in favor of a lie proposed by the anti-SSM crowd. > [@Bricker](#): > > No. If that were the only imaginable rationale behind a legislature’s actions, that would fail the test, as _Romer_ teaches us. Do you agree with **Romer**? The State raised the exact same argument that you did in this thread… that Amendment 2 could have been enacted to conserve state resources. Would you have dissented in Romer, and accepted that seemingly plausible rationale as you do in this case? > [@Bricker](#): > > Do I believe that finance was at the heart of every legislator’s decision? No, not remotely. But again: irrelevant to the rational basis test. Irrelevant to **your** inordinately deferential, rubber stamp of a rational basis test, sure. To mine, the intent of the legislature, and the reality of the world, are a bit more important. > [@Bricker](#): > > Forced sterilization: no. _Skinner v. Oklahoma_. Skinner was a, IIRC, a strict scrutiny case. I am asking if, in your view, it would pass your rational basis test. Assume that someone believes that, since it is not in the Constitution, the right to reproductive choice is unprotected (gosh, it seems almost realistic?), and thus is not subject to strict scrutiny. Also pretend that the mentally ill are not a protected class (I’m not sure one way or the other on this). Would it pass your rational basis test? Seems to me that the will of the majority would pass your rational basis test. > [@Bricker](#): > > Anti-miscegenation laws: irrelevant question; racial classifications don’t get analyzed under the rational basis test. Don’t fight the hypothetical, just answer the question. > [@Bricker](#): > > Forced weight loss for the fat: don’t know. “The fat” are not a protected class, so any legislation would presumably be analyzed under the rational basis test. And, once again, using your hyper-deferential rational basis test, it seems to me that it would pass. > [@Bricker](#): > > The constitution is not a bastion against unwise legislation. Agreed. > [@Bricker](#): > > The child support issue has been answered already by the Court in the negative, although the case style escapes me at the moment. How about the adultery one? Once again, it seems to me that the religious based dislike for adultery is comparable to the animosity against homosexuality. If the legislature said you cannot remarry, it would have a rational basis for that also. > [@Bricker](#): > > The black hair business would likely be kicked under the “deeply rooted in our nation’s history and tradition” rubric. As would the left-handed persons one, since for all of our nation’s history both black hair and left-handedness have been free from being singled out. The black hair also might be found to be a back door to racial discrimination. Again, I’m not asking if the classifications would allow for higher scrutiny, but rather whether the act would pass your rational basis test. The entirety of my questions are an attempt to determine your view of that test. It seems to me that the Supreme Court, at varying times, has been unsatisfied with your view of the rational basis test. _Craig v. Boren_ may be one example, where the Court created yet another level of scrutiny in part, I believe, that your view of the rational basis test was insufficient to meet requirements of the Constitution. > [@Bricker](#): > > Now answer me honestly. If you were taking the bar, how would you be describing the rational basis test? Would your answer look closer to what I’m saying in this thread, or what you’re saying in this thread? Luckily, I don’t put much stock in yes or no questions regarding the law. Shades of gray don’t really scare me all that much. The rational basis test of the Washington court is certainly in line with precedent, if that is your point. Of course, the rational basis test of Goodbridge is also in line with precedent like Romer and Cleelburne. Based upon the clear legislative intent and effect of DOMA, I think a more searching inquiry is necessary than your view of the rational basis test. As I said before, the judiciary should not just be a rubber stamp to the discriminatory whims of the majority. ---
**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 29, 2006, 4:26pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/74 "2006-07-29T16:26:47Z")
[QUOTE=Hamlet] You treat the “rational basis test”, intermediate scrutiny, and strict scrutiny as if they were Constitutionally mandated, and not a creation of the judiciary to aid in the interpretation of the Constitution. The rational basis test itself has been applied with varying degrees of intensity, from abject deference to the bigotry to the majority, to the more searching inquiry in _Cleburne_ and _Romer_. I’m trying to place your philosophy on that spectrum, to pinpoint how much deference you will give and how far out of the realm of reality you are willing to go to find a legitimate governmental interest and a “rational” connection between that basis and the classification. I’m also trying to determine whether your rational basis differs when applied to civil rights issues or protection of the minority. So far, I think I’ve determined that you grant near-infinite deference, and are more than willing to overlook reality in favor of a lie proposed by the anti-SSM crowd. [/QUOTE] Isn’t that precisely where the issue of immutability comes in? Seems to me that if a characteristic is immutable, you treat it like other immutable characteristics-- eg, gender or race. But if it is not immutable, you treat it like a lifestyle other choices-- eg, polygamy\*. Now, I believe sexual orientation to be immutable, but I doubt I could prove that in a court of law. I’m not even sure that a biologist or a psychologist could do that. \*and I’m not even sure that polygamy qualifies as simply a “lifestyle choice” if we really delve into this scientifically. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 29, 2006, 4:29pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/75 "2006-07-29T16:29:26Z")
[QUOTE=Hamlet] You treat the “rational basis test”, intermediate scrutiny, and strict scrutiny as if they were Constitutionally mandated, and not a creation of the judiciary to aid in the interpretation of the Constitution. The rational basis test itself has been applied with varying degrees of intensity, from abject deference to the bigotry to the majority, to the more searching inquiry in _Cleburne_ and _Romer_. I’m trying to place your philosophy on that spectrum, to pinpoint how much deference you will give and how far out of the realm of reality you are willing to go to find a legitimate governmental interest and a “rational” connection between that basis and the classification. I’m also trying to determine whether your rational basis differs when applied to civil rights issues or protection of the minority. So far, I think I’ve determined that you grant near-infinite deference, and are more than willing to overlook reality in favor of a lie proposed by the anti-SSM crowd. [/quote] I don’t know about “near infinite,” but yes, my deference to the legislature in aplying the rational basis test is quite substantail, _as the rational basis test itself mandates_. You’re proposing a fourth test – call it “rational basis with teeth.” I’m not opposed in theory to another test, since - as you correctly point out - the whole lot of ‘em are judicially created in the first place. But we have to have SOME test, because we must create classifications in the law that treat one group differently than another. EVERY SINGLE FREAKIN’ LAW does this in some way. We treat people who park illegally differently than people who park legally by authorizing tickets to the former and not the latter. There must be some classifications permitted. > [@](#): > > Do you agree with **Romer**? The State raised the exact same argument that you did in this thread… that Amendment 2 could have been enacted to conserve state resources. Would you have dissented in Romer, and accepted that seemingly plausible rationale as you do in this case? No - _Romer_ distinguished itself, as the majority correctly noted, by its wide reach. It wasn’t just one area; I would have accepted it then. But the referendum at issue in _Romer_ touched literally thousands of areas of regulation, all to the effect of disadvantaging homosexuals. It made it impossible to believe the lie. > [@](#): > > Irrelevant to **your** inordinately deferential, rubber stamp of a rational basis test, sure. To mine, the intent of the legislature, and the reality of the world, are a bit more important. Which of our views is the controlling one in forty-eight of the fifty states? > [@](#): > > Skinner was a, IIRC, a strict scrutiny case. I am asking if, in your view, it would pass your rational basis test. Assume that someone believes that, since it is not in the Constitution, the right to reproductive choice is unprotected (gosh, it seems almost realistic?), and thus is not subject to strict scrutiny. Also pretend that the mentally ill are not a protected class (I’m not sure one way or the other on this). Would it pass your rational basis test? Seems to me that the will of the majority would pass your rational basis test. Yes, it would pass my rational basis test. From this, you cannot conclude that my version of the test is useless, however, because it produces such a poor result. My view of the test must be considered in harmony with all other law, including when strict scrutiny is applied. You could as well ask me if a law forbidding criticism of the mayor passes my rational basis test. Yes, it would – the legislature could be seeking to calm unrest and ensure confidence in elected government, or promote tourism by creating an impression of stable local government and policing. “Ah ha!” you say. “Your rational basis test leads to a fascist state!” No. My rational basis test exists in a world where we also have the first amendment, and you’d argue against such a law on that basis, where the law would be quickly eliminated. So don’t take my answers on how my rational basis test would judge miscegenation as evidence of its value when we both know that strict scrutiny is applicable in the hypo. > [@](#): > > Don’t fight the hypothetical, just answer the question. Answered, notwithstanding and subject to the objections noted. > [@](#): > > How about the adultery one? Once again, it seems to me that the religious based dislike for adultery is comparable to the animosity against homosexuality. If the legislature said you cannot remarry, it would have a rational basis for that also. And laws against adultery still exist, and are sustainable under the rational basis test. > [@](#): > > Luckily, I don’t put much stock in yes or no questions regarding the law. Shades of gray don’t really scare me all that much. The rational basis test of the Washington court is certainly in line with precedent, if that is your point. Of course, the rational basis test of Goodbridge is also in line with precedent like Romer and Cleelburne. Based upon the clear legislative intent and effect of DOMA, I think a more searching inquiry is necessary than your view of the rational basis test. As I said before, the judiciary should not just be a rubber stamp to the discriminatory whims of the majority. I’m sorry - in that paragraph I missed the answer. Would your bar review essay paint a picture of the rational basis test that is closer to my view or closer to yours? I don’t ask if it would BE my view or BE yours; I’m asking which it would be closer to. ---
**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 29, 2006, 5:12pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/76 "2006-07-29T17:12:36Z")
[QUOTE=Bricker] I don’t know about “near infinite,” but yes, my deference to the legislature in aplying the rational basis test is quite substantail, _as the rational basis test itself mandates_. You’re proposing a fourth test – call it “rational basis with teeth.” I’m not opposed in theory to another test, since - as you correctly point out - the whole lot of 'em are judicially created in the first place. [/quote] Call it whatever you wish. Me, I’d prefer calling it “Hamlet’s reality driven test for lying legislatures trying to disadvantage minorities they don’t like.” But “rational basis with bite” sounds good too. > [@Bricker](#): > > But we have to have SOME test, because we must create classifications in the law that treat one group differently than another. EVERY SINGLE FREAKIN’ LAW does this in some way. We treat people who park illegally differently than people who park legally by authorizing tickets to the former and not the latter. There must be some classifications permitted. Of course, and in a majority of cases where the legislation isn’t enacted in an attempt to disadvantage a minority group, I have no problem with deference to the legislature. As long as the classification is based on something related to the legitimate interest. I don’t buy the lie that it is the lack of procreative ability that makes homosexuals unfit for marriage. > [@Bricker](#): > > No - _Romer_ distinguished itself, as the majority correctly noted, by its wide reach. It wasn’t just one area; I would have accepted it then. But the referendum at issue in _Romer_ touched literally thousands of areas of regulation, all to the effect of disadvantaging homosexuals. It made it impossible to believe the lie. Do you believe the anti-SSM marriage lie? I suspect you don’t, but you’re still willing to go along with it. > [@Bricker](#): > > Which of our views is the controlling one in forty-eight of the fifty states? Which of our views is right? > [@Bricker](#): > > Yes, it would pass my rational basis test. > > From this, you cannot conclude that my version of the test is useless, however, because it produces such a poor result. My view of the test must be considered in harmony with all other law, including when strict scrutiny is applied. You could as well ask me if a law forbidding criticism of the mayor passes my rational basis test. Yes, it would – the legislature could be seeking to calm unrest and ensure confidence in elected government, or promote tourism by creating an impression of stable local government and policing. “Ah ha!” you say. “Your rational basis test leads to a fascist state!” > > No. My rational basis test exists in a world where we also have the first amendment, and you’d argue against such a law on that basis, where the law would be quickly eliminated. So don’t take my answers on how my rational basis test would judge miscegenation as evidence of its value when we both know that strict scrutiny is applicable in the hypo. I am merely highlighting what I see as flaws in your view. We can simply boil it down to your “will of the people” versus “protection of rights” if you like. But I do not think it is fair to simply gloss over the flaws in your view of legislative deference by saying it’s merely hypothetical. Prior to Loving, strict scrutiny wasn’t required for anti-miscegenation laws. Prior to Boren, intermediate scrutiny wasn’t for gender differences. Throughout history, the courts have taken action to protect citizens from governmental discrimination, even when there was a “rational basis” for the discrimination. Me, I like having a judiciary that acts as a check on the legislative power, especially in the realm of rights and anti-discrimination. > [@Bricker](#): > > Answered, notwithstanding and subject to the objections noted. The record will so reflect. > [@Bricker](#): > > And laws against adultery still exist, and are sustainable under the rational basis test. Which further emphasizes the hypocrisy of the Christian right, where homosexuality is a horrible abomination that should allow them to discriminate, and adultery, which is the one listed in the 10 commandments, but gets a pass because it’s “us” doing it instead of “them”. I’ll also refer you to Martin v. Ziherl from beautiful Virginia. And, finally, I would guess that a law enacted that denied marriage to those who have been married before would fail the rational basis test. > [@Bricker](#): > > I’m sorry - in that paragraph I missed the answer. Would your bar review essay paint a picture of the rational basis test that is closer to my view or closer to yours? I don’t ask if it would BE my view or BE yours; I’m asking which it would be closer to. You apparently also missed the reason I gave for not simply answering it. But, if you think it somehow makes a point, your description would be a better multiple choice question. However, I would say my description of the rational basis test, which includes references to Cleburne and Romer, would score higher on the essay question rather than yours that apparently ignore them. But, just to make you happy, your view is more prevalent in case law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 29, 2006, 6:24pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/77 "2006-07-29T18:24:00Z")
[QUOTE=Hamlet] Do you believe the anti-SSM marriage lie? I suspect you don’t, but you’re still willing to go along with it. [/quote] I think that states have over a hundred legislators each, usually. And I think that each legislator’s mind has something different in it. Most of them are almost certainly motivated either by animus against gays, or a simple and uncritical belief about what marriage is. Neither view is one I agree with. If I were a legislator, I’d vote to permit same-sex marriage. > [@](#): > > Which of our views is right? Focusing myopically on the end result – yours is right: it provides the right answer, availablility of marriage to same-sex couples. But it comes with a price I’m not willing to pay: giving to the judiciary a power I do not believe it should exercise. So in the wider scheme, I believe my view is _wisest_, and thus the more right choice overall. > [@](#): > > Me, I like having a judiciary that acts as a check on the legislative power, especially in the realm of rights and anti-discrimination. And me, I like a judiciary – as I like ALL branches of government – to be limited by specific grants over power, that can be discerned by reading words, words that were enacted by consent of the governed. ---
**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 29, 2006, 6:36pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/78 "2006-07-29T18:36:20Z")
[QUOTE=John Mace] It makes them right legally. [/QUOTE] Only after the fact. If they had decided the other way, it still would have made them right legally. That’s why I give so little weight in these debates as to whether they were right from a legal standpoint, as whatever they decide is what ends up being right legally, even when it’s wrong. As I’ve noted previously, if we’re only concerned with whether they are right legally, these are going to be damned short threads. > [@](#): > > Did you think anyone was talking about them being “right” morally? I’m not even talking about them being morally right. I’m talking about them using the lowest bar, the rational basis test, when deciding these things, even if the various constitutions warrant more of them. Hell, they tossed aside Article 1, sections 3 and 12 without even breaking stride. I can not honestly think of a single issue, no matter what, with which I couldn’t make up some passing excuse that would pass the rational basis test, and therefore feel that without teeth, it’s useless. Of course, I also think homosexuality is immutable, and that it warrants intermediate (actually I think it warrants strict, but that’s a different debate) scrutiny or better. > [@](#): > > The courts aren’t supposed to determine the morality of a law, only the legality of that law. Wouldn’t you agree? Quite definitely, but I think they did so improperly here. ---
**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 29, 2006, 6:50pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/79 "2006-07-29T18:50:21Z")
[QUOTE=Bricker] I think that states have over a hundred legislators each, usually. And I think that each legislator’s mind has something different in it. Most of them are almost certainly motivated either by animus against gays, or a simple and uncritical belief about what marriage is. [/quote] I agree that looking at the intent of the legislators is not necessarily the best way to go about interpreting statutes, and is definitely not the only way to interpret Constitutions. Being bound by the original intent of numerous different legislators, or, for that matter, the original intent of numerous different founders, may be a fool’s errand. But I think in cases like this where the animus is clear, and the effect is improperly discriminatory, more than your simplistic rational basis test is necessary. > [@Bricker](#): > > Neither view is one I agree with. If I were a legislator, I’d vote to permit same-sex marriage. Not planning on running as a Republican anytime soon I suppose. > [@Bricker](#): > > Focusing myopically on the end result – yours is right: it provides the right answer, availablility of marriage to same-sex couples. But it comes with a price I’m not willing to pay: giving to the judiciary a power I do not believe it should exercise. So in the wider scheme, I believe my view is _wisest_, and thus the more right choice overall. My analysis is not an ends driven result. Certainly the ends of the legislation (discrimination against homosexuals) fails that test. We’ve gone around and around the judiciary’s role, cries of “judicial activism” and “no check on the will of the majority” so many times it’s silly. However, I do not think your view is the wisest, nor, in fact, the intended, role of the judiciary. > [@Bricker](#): > > And me, I like a judiciary – as I like ALL branches of government – to be limited by specific grants over power, that can be discerned by reading words, words that were enacted by consent of the governed. So do I. Gosh, it’s good to agree on something. ---
**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 29, 2006, 6:51pm UTC](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098/80 "2006-07-29T18:51:47Z")
[QUOTE=DMC] I’m talking about them using the lowest bar, the rational basis test, when deciding these things, even if the various constitutions warrant more of them. Hell, they tossed aside Article 1, sections 3 and 12 without even breaking stride. I can not honestly think of a single issue, no matter what, with which I couldn’t make up some passing excuse that would pass the rational basis test, and therefore feel that without teeth, it’s useless. [/QUOTE] I agree. I’d much prefer we had only the strict scrutiny test for 14th amendment issues, and that the legislature (not the courts) decided which groups were to receive protection under that amendment. [Previous page](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098.md?page=3) [Next page](https://boards.straightdope.com/t/move-over-ny-court-of-appeals-theres-a-new-supreme-court-to-get-fucked/366098.md?page=5)