# Prop-8 Arguments Today - What will happen? **URL:** \ **Category:** Great Debates\ **Created:** [March 5, 2009, 2:50pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386 "2009-03-05T14:50:54Z")\ **Posts on this page:** 7\ **Page:** 16
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2010, 2:12am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/301 "2010-08-15T02:12:10Z")
> [@Antinor01](#): > > I understand that completely. My question was more asking for opinions on whether or not the procreation question may or may not be seen as a valid argument by the 9th circuit. > > The standard of review is obviously still up in the air, since it appears that SCOTUS has normally used rational basis, the CA supreme court said sexual orientation is a suspect class and subject to strict, Walker believes it should be subject to strict, etc. (I recall that you believe it should be intermediate, I disagree but do understand your rationale.) But that answer to “what standard of review will be used?” will determine the answer to “Is procreation a valid argument?” If true rational basis is used, then yes, the procreation argument will carry the day. Under any more stringent standard, it won’t. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 15, 2010, 2:24am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/302 "2010-08-15T02:24:56Z")
Perhaps you might briefly explain “rational basis” jurisprudence without teeth, and indicate what if anything has ever failed to pass muster under it? From what I gather, there’s a presumption of constitutionality for any law, which the complainant must overcome by demonstrating its unconstitutionality. And under rational basis, it seems to simply suffice that the law, as written, has some connection to a legitimate government purpose. It doesn’t have to do it well, it doesn’t have to articulate what that purpose is, but it must somehow be evident to the court that one does exist. Amplify that, if you please, to make it in some way coherent what exactly the court engaged in rational basis analysis actually does. ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [August 15, 2010, 2:27am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/303 "2010-08-15T02:27:53Z")
> [@Bricker](#): > > > [@Antinor01](#): > > > > I understand that completely. My question was more asking for opinions on whether or not the procreation question may or may not be seen as a valid argument by the 9th circuit. > > > > The standard of review is obviously still up in the air, since it appears that SCOTUS has normally used rational basis, the CA supreme court said sexual orientation is a suspect class and subject to strict, Walker believes it should be subject to strict, etc. (I recall that you believe it should be intermediate, I disagree but do understand your rationale.) > > But that answer to “what standard of review will be used?” will determine the answer to “Is procreation a valid argument?” > > If true rational basis is used, then yes, the procreation argument will carry the day. Under any more stringent standard, it won’t. Thank you. The only precedent from the 9th I can find quickly suggests that they have in the past applied intermediate scrutiny to sexual orientation ([Witt v Department of the Air Force](http://www.ca9.uscourts.gov/datastore/opinions/2008/05/20/0635644.pdf)). Of course, I may be wrong in my analysis that the two cases would be looked at the same way. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [August 15, 2010, 2:39am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/304 "2010-08-15T02:39:14Z")
Of the state cases I recall offhand, New York found that procreation was sufficient rational basis for the state to restrict marriage to opposite-sex couples. California and Iowa both decided that homosexuals are a protected class, and didn’t use rational basis review. Massachusetts used rather different wording in the Massachusetts state constitution to reach the conclusion it did. I don’t know about Connecticut, but I don’t believe they found that there was no rational basis to restrict marriage either. > [@Der Trihs](#): > > If someone lets such naked bigotry pass, I don’t believe whatever legal rationale they are trying to use is their actual motivation; I think they are bigots. The thing is that rational basis review is pretty much designed to prevent any theoretical class of people from claiming discrimination. Various gun regulations could be considered to discriminate against gun owners as a class. But there’s no reason to call people who favor treating gun owners differently than non-gun owners bigots (and I’m just going to ignore the Second Amendment’s role here). Thus the courts have much greater deference to the legislature on the matter, as well they should. I think it would be more correct to say that people who insist that laws that discriminate against homosexuals should only have to meet rational basis review are bigots. The problem isn’t with the standard of review, but in applying the lowest one to sexual orientation. Although, I’d note that I don’t personally have as much of a problem as **Bricker** does with the court having apparently created the “rational basis with teeth” standard that they seem to apply to sexual orientation. It’d be nice if they clarified these things a bit, before they give every aggrieved group the ability to have the courts reexamine every law for reasonableness. But I imagine we could also worry about that if and when it happens. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2010, 2:53am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/305 "2010-08-15T02:53:22Z")
> [@Antinor01](#): > > Thank you. The only precedent from the 9th I can find quickly suggests that they have in the past applied intermediate scrutiny to sexual orientation ([Witt v Department of the Air Force](http://www.ca9.uscourts.gov/datastore/opinions/2008/05/20/0635644.pdf)). Of course, I may be wrong in my analysis that the two cases would be looked at the same way. Very promising. This case, which I was not familiar with, clearly rejects the idea of rational basis analysis of “Don’t Ask, Don’t Tell.” I would certainly argue that if DADT is subject to heightened scrutiny, so is marriage. ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [August 15, 2010, 2:57am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/306 "2010-08-15T02:57:23Z")
I just noticed that in the stay request from Perry, they cited Witt. Their take seems to be that Witt determined that sexual orientation is NOT a suspect class subject to higher scrutiny. Now I’m really confused and have more reading to do. [United States District Court Northern District of California | PDF | Same Sex Marriage In California | In Re Marriage Cases](http://www.scribd.com/doc/35328289/Doc-705) Pages 2 and 3. This legal stuff is hard. 😉 ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [August 15, 2010, 3:17am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/307 "2010-08-15T03:17:42Z")
> [@Polycarp](#): > > Perhaps you might briefly explain “rational basis” jurisprudence without teeth, and indicate what if anything has ever failed to pass muster under it? > > From what I gather, there’s a presumption of constitutionality for any law, which the complainant must overcome by demonstrating its unconstitutionality. And under rational basis, it seems to simply suffice that the law, as written, has some connection to a legitimate government purpose. It doesn’t have to do it well, it doesn’t have to articulate what that purpose is, but it must somehow be evident to the court that one does exist. Amplify that, if you please, to make it in some way coherent what exactly the court engaged in rational basis analysis actually does. You are correct. What a court engaged in rational basis does is the following: identify the government interest. Under rational basis we’re talking about the universe of possible interests - this doesn’t even have to be something the state has articulated. Anything the court can think of that might be what the state is getting at by passing this law - that’s a legitimate interest. It’s incredibly hard to pass a law that has no _conceivable_ legitimate interest for the state, because keep in mind that for the purposes of this analysis, a bunch of obviously illegitimate interests can be safely ignored as long as there’s one legitimate one that could be the state’s interest. In fact, the court isn’t even interested in determining whether the legitimate interest is the _actual_ purpose of the law; just whether it could be. Prong two: is the law rationally related to this legitimate interest? Rationally related means what it sounds like - does this have any likelihood of promoting the interest? The law can address only part of a problem without having to address everything. It can be an inefficient way to address the issue; it doesn’t have to be the best conceivable “fit” to address the state’s interest. So, in other words, it’s just what you said. As for whether rational basis could ever strike down any law, yes, it certainly can. You just need a court willing to denounce the legislature as acting either completely irrationally or in furtherance of nothing but illegitimate interests (which is to say unconstitutionally discriminatory purposes). The question of whether rational basis without teeth has struck down any laws is a bit of a tricky one because that’s not a distinction that a court would claim to be applying, so technically any law struck down by rational basis was officially done so without “teeth.” A court will just say that the statute fails even rational basis review, and then say why, and then commentators will claim that that seemed like more scrutiny than rational basis requires (which is sometimes true, to be sure). The problem is that rational basis review is defined in the negative, i.e. it’s defined by not being very critical, so any time the court is at all skeptical it opens itself up to criticism for being _too_ skeptical. But I’d say that City of Cleburne v. Cleburne Living Center, where rational basis struck down a regulation placing a facility for the mentally retarded under a zoning requirement, in the name of “safety,” that didn’t apply to hospitals, etc. qualifies. The court there said that the _only conceivable interest_ being protected was animus/prejudice toward the mentally impaired, which is not legitimate. It is claimed, I guess, that this was also rational basis with bite, but frankly the language required to strike down a law under regular rational basis is _always_ going to seem that way, because what are they going to say otherwise? “We can’t think of any reason this law was passed. Not at all. So it’s no good.” [Previous page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=15)