Also, Scalia didn’t just say “The lawmakers in California might have believed same-sex couples are harmful to children”, he actually says that it might be true, emphasizing that more research is needed to know for sure.
You have a fair point that “what is scientifically true” is not really important to rational basis (at least rational basis without bite), but I nevertheless have a problem with Scalia promoting this notion that gays might be unfit parents, even if it ultimately won’t have any bearing on the Court’s decision.
Why should your be sorry? It was suggested to you that you shouldn’t debate in the debate forum. Did that request make ANY sense?
I notice in your “other thread” that you take no position on any of the items you mention. I happen to agree with your “no position” position. Since I don’t have a position either, there is really nothing to discuss over there.
Putting aside my feelings about Scalia’s argument, I’d like to ask about rational basis here.
If a California law had no rational basis in California, but a similar law might have had a rational basis somewhere else where circumstances are different, that can’t really justify upholding the California law, can it?
Justice Ginsburg’s reply to Scalia at least seemed to suggest she felt the question was irrelevant given the state of same-sex adoptions in California.
I am not a lawyer but I think the problem is that people think that to be OK under the “Rational basis review” that there must be some real “rational” argument from the legislators.
If the justices can even hypothesize any “legitimate” interest, no matter if the tenant is true or not the law will stand.
It is only if the justices can’t think of any reason it could be justified or if it is just non-sense from a text standpoint that they will overturn it if it is held to the rational basis test.
So the law if fine if it is rationally related to any legitimate interest of the government. That interest does not need to be the motivator that caused the legislators to pass the law in the first place.
Obviously the man is not going to show up at any pride parades but it is well within his duty to consider any and all rational reasons the government would have to pass legislation, not matter how silly.
Most of the recent SCOTUS cases which have ruled on that involved homosexuality have been held at a slightly higher and unofficial standard many call rational with bite. This is mostly because IMHO they are unwilling to elevate sexual preference to a full protected class as this would cause country wide changes in laws. Under rational “with bite” the same general rational basis rules hold except they will overturn the law if it was passed due to various factors like animus.
So while it is easy and may feel good to jump all over a justice who doesn’t share your world view, I will remain hopeful that his questions were an attempt to think if the law could have been passed due to any rational idea or if it was based on animus.
It is unfair and a logical fallacy to take those statements as his personal standing, he could have been playing the “devils advocate” or he may have just been dreaming up justifications which could meet the standard.
Gah, I wish I could remember where I found it, but I read a list of quotes out there of things that Scalia has compared homosexuality to. The only one I remember, because it was called out as particularly insidious, was an implication that a gay relationship was of no more emotional or legal significance than that of roommates.
Anyway, the quotes seemed to add up to a man who personally does not like homosexuality, to say the least.
Well, yeah, I think I already addressed that first part and the stuff you added about the “with bite” analysis is important to understand, too.
One might argue that if a Justice was inclined to want SSM to be legal, and was considering this under rational basis review, he or she would be remiss if they knew of some “rational basis” but failed to bring it up because they wanted the ruling to go a particular way. We might call that Judicial passive activism.
That is actually irrelevant, it is well known he is not a gay rights advocate. It does not mean his questions he asked this week were “trolling” or improper for his position.
He has his position because he is conservative. I would personally prefer to have a more liberal court but unless you can show where he uses his own personal biases as the justifications for a ruling you have no point.
Note if you go watch the hearings for DOMA in the house and the signing you will See that except for a handful of representatives everyone has those ugly quotes. Including Bill Clinton.
That is the amazing thing about the movement, how fast it has moved. The Justice may not change his mind before he dies but the whole point is that rational basis review has no relation to the justices personal beliefs at all.
It’s in his dissent in Romer. If he said “emotional significance” I would be surprised. I would not be surprised if people get upset because they imagine he said that. Or that they made up that he “implied” it. He’s a textualist. If he wants to say something, he’ll say it.
But aren’t many people already making predictions about how the judges will rule based on liberal/conservative lines? Should we NOT be doing so? Or should we only be doing so based on factors that are not “Justice X hates gays”?
The question presented at the District Court level was whether Prop 8 had a rational basis, and Judge Walker had a trial at which he heard evidence and expert testimony on the question. If you want to understand the full background of what went on and the legal reasoning, you can read Judge Walker’s 136-page decision. Wikipedia also has a good summary of the trial evidence.
David Boies and Ted Olson lead the legal team for the opponents of Prop 8 and put on substantial evidence supporting SSM and arguing that the only reasons for opposing SSM are religious in nature, which are not valid as a “rational basis” because basing a law solely on religious reasons would violate the First Amendment. The proponents of Prop 8 did not put on a particularly effective response. As Judge Walker summarized (at page 8-10 & 16 of his decision):
Based on the testimoy, Judge Walker concluded that: “excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.” He found that denying SSM did not in any affect the the ability or likeliehood of opposite sex couples from procreating, and all of the other reasons that the proponents raised were factually unsupported or not related to any legitmate reason to deny SSM (such as, for example, moral opprobium of gays). His conclusion, however, was based in part on the fact that California had adoption law that permitted same sex couples to adopt and domestic partnership laws that provided marriage-like benefits to same sex registered domestic partners.
So, there is a chance that another trial in another state with somewhat different laws could come to a different conclusion as to whether there “rational basis” for SSM in that state. Before the Supreme Court, however, is Judge Walker’s decision after trial as it applies to California (as well as the unique circumstance of Prop 8 having been adopted after SSM was legal and practiced for some time), and other state’s laws are not really relevant to this paticular case.
What may be very interesting is what could happen if SSM is upheld in California on non-procedural grounds. Depending on the Supreme Court’s decision, it could apply pretty much automatically to all states, apply pretty much automatically to all states with domestic partnership laws or which permit same sex couples to adopt, or require a detailed trial in each state, among other possibilities.
I think the idea that Scalia “hates gays” does not belong in reasoned debate about the subject because it’s so difficult to know such a thing. And we should consider that two people might have differing views about the law as it applies to gays without either of those people “hating” gays. We certainly expect our SCOTUS justices to put aside any person feelings they have about people or groups of people when applying the law.
More properly it goes to the point considering the court was being invited to rule broadly. I view Scalia’s questioning as getting right to that point.
If there is no rational basis in California due to existing law allowing same sex couples to adopt, then the question Scalia raises is if rational basis would exist in those states which do not provide for such adoptions? If yes, then any ruling striking down Prop 8 on those grounds would be limited to California (and perhaps other similarly situated states). If no, then a broader ruling affecting all 50 states would not be precluded on a rational basis ground.
