You’re not wrong at all. One need only search law reviews or appellate court decisions to find the “morality as rational basis” debate is still raging. Personally, I have problems with the idea that the Constitution requires no establishment of religion, but allows for sinning to be the rational basis.
I think “sinning”, in general, is not an issue of the law but “sinning” and “what we deem morally acceptable and legal” are not unrelated. There are all sort of laws that relate to some sort of morality that can be tied to “sinning” (most having to do with sex or nudity or pornography). Additionally, the procreation/parenting factor plays in as well. The state has an interest in promoting stable family lives for children to be raised in and same sex couples may not be the type of family life that the state wants to encourage.
I don’t ascribe to those beliefs myself, but others might, and certain legislatures clearly do.
I don’t believe that the quoted section, a summary of the proponents’ position shows bias, and I don’t believe that your modifications change the conclusion at all.
As Judge Walker lays out in his more detailed explication of the testimony later in the opinion, the only real distinction that proponents’ witnesses pointed out (other than improper religious concerns) was that in a heterosexual marriage the couple could procreate through sexual activity. Indeed, David Blankenhorn, the proponents’ main witness, conceded that SSM was virtually identical to opposite-sex marriage in nearly all aspects other than the ability to procreate through marital sexual relations. As the Decision noted (pages 47-49):
As a result, in his summary, Judge Walker focused on the one real distinction acknowledged by all parties, the possibility of procreation through sexual relations.
John, you’re right on this one. Obama’s administration, for example, believes that this law deserves heightened scrutiny and would be unconstitutional by that standard (I agree), but acknowledges that against a rational basis standard, DOMA stands:
Have they changed that position? I wish they would rename the “rational basis standard.” It implies something it should not–it is a very low threshold, extremely deferential to the legislature (which you know). Yet you see in threads like this people who are exasperated over the thought that somebody doesn’t see it as self-evident that DOMA fails that standard. Well, Obama’s administration disagrees!
If this is decided on a rational basis, I would think DOMA could only be overturned on a “states’ rights” basis, that the Feds overstepped their bounds. It is really easy to advance a rational basis argument, and people need to understand that a cockeyed, partially illogical, inefficient law can still meet that very low standard.
We really need to get more in the business of amending the constitution. I’d like to see the constitution amended to include any new “suspect” or “protected” classes. We would then be able to answer Scalia’s question precisely: When the “x” amendment passed. Why leave it up to a handful of justices to make that determination. We, the people, through our elected legislatures should be doing that.
I think we can already answer his questions. Standards of scrutiny were introduced by the Court in the first half of the 20th century. That’s their protocols, not anybody else’s. So, I believe a reasonable response would be: It was always unconstitutional against the strict standard of scrutiny (a standard that SCOTUS belatedly adopted), though society was not aware until science led us to understand that homosexuality is not an illness or depravity, but a trait not chosen that has resulted in a suspect class–again, against the Court’s own standards:
[quote]
[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.[]They possess an immutable and/or highly visible trait.[]They are powerless to protect themselves via the political process. (The group is a “discrete” and “insular” minority.)[*]The group’s distinguishing characteristic does not inhibit it from contributing meaningfully to society.[/ul][/li][/quote]
That’s the response, I think. If these criteria apply to race, how does it not apply to homosexuality?
So, again, the answer to Scalia, IMO: “You guys ought to follow your own protocols. It was always unconstitutional, though society could perhaps be excused (or we might at least understand) for its unfounded conclusions, given its ignorance in the past. Not any more. When that point of enlightenment occurred isn’t relevant, in that this was always unconstitutional whether or not we realized it.”
I think this threshold is not absolute, or it wouldn’t apply to race either. No one is completely powerless to influence the political process, so for the standard to be meaningful, it would have to mean “unable to effectuate the change that would eliminate the discrimination,” or something like that. Otherwise, no category meets the standard, including race.
That depends on what those words actually mean. I’d say a logical way of looking at it would be that if every member of that class were to vote in favour of protecting themselves and every member outside that class were to vote against it they would lose.
Any other standard would not be them protecting themselves but would be them relying upon others for their protection in the political process.
That’s true, but I still think it’s a basis for a response to Scalia. He may not believe it’s a suspect class, but for those who do, that’s the answer to his “gotcha.”
As for abandoning suspect class / heightened scrutiny, I’d prefer they come out and say that’s no longer their protocol, rather than have a “squishy” protocol, subject to their saying, “And this time, we mean it, but we reserve the right to ignore these criteria in the future.”
But right now, that’s their process. If it’s a suspect class (I think it is), this was always unconstitutional. That’s my answer to Scalia, should he call me about it.
I would read that with more emphasis on the “powerless” part. That is, they are somehow denied equal access to the political process (ie, voting). This is equality of access, not equality of outcome.
Your “logical” reading would mean that men are a protected class but women are not.
It would mean that 20-year olds are a protected class but 21 - 60 year olds are not.
This seems like a pretty good answer to me (probably not Scalia, though.) And if not always, then since the states abolished coverture. At that point, the gender of people involved in a civil marriage is no longer relevant.
Are non-SC justices allowed to create new levels of scrutiny or new suspect classes? If not, then the answer is: We’re asking you to create a new suspect class so that, going forward, it will be unconstitutional.
If they aren’t willing to do that, then they aren’t going to win any sweeping judgement.
At that, sex-based discrimination gets intermediate scrutiny, right? So, not as high a bar as the strict scrutiny of race-based discrimination, and not as low a bar as the rational-basis test we’d apply if Congress passed a “people under five feet tall can’t get married” law?
So, okay, you can’t marry her. Why? Because I’m black? No, that has nothing to do with it. Because of my height? Because of my age? Again, no. You can’t marry her because you’re a woman; you could do it if you were a man, but you’re not, so you can’t; it’s good old sex-based discrimination.
That’s not how it works. While the concept of suspect classes derives from the phrase “discrete and insular minority” in footnote 4 of U.S. v. Carolene Products, the Equal Protection Clause looks at classifications, not groups. It doesn’t matter whether as a male, you have historically been the beneficiary of discrimination, rather than a victim; any classification based on gender must survive elevated scrutiny, even those which benefit women.
