ok, so take it out of bill gates. 99% of the people in State X who have kids are filthy rich that the tax break is of no consequence. You’re still not going to over turn rational basis.
the reviewing court.
(the word doesn’t hang out there like a flapping flag in the wind - i’m sure you will find definitions and tests in prior appellate or supreme court caselaw which elaborates on exactly what “legitimate” state interests are or can be.)
As for Bricker’s post 176… made up and bullshit doesn’t mean “not legitimate government interest”. It means that the proffered legitimate government interest isn’t the main purpose of the law.
I dunno. As a matter of fairness I think they should be allowed presuming all parties involved are fully informed and ok with it.
I think it is illegal as a practical matter. If you’re sick who decides on your care if you are unable to do it for yourself? The wives form a committee and vote? First wife rules (or husband as the case may be)?
If one wife of several has had enough and wants to leave the relationship how do you equitably divide the assets? She gets 1/5 of the house? What about kids?
If, say, the husband wanted to marry wife #5 and the other wives were uncool with wife #5 can they stop it (since all parties need to be ok with it)?
Just cannot see it working as a practical matter.
I don’t see how that disagrees with me. To me that bit smacks of “separate but equal” which the SCOTUS has said is an inherently unequal prospect. I am not sure how that equates to the purpose of marriage being procreation.
Laws don’t fail rational basis review. It’s a test without a purpose essentially. That laws discriminating on the basis of sexuality have failed rational basis review shows, IMHO, not that the courts failed to find a rational basis for the law, but more that courts have imposed a heightened level of scrutiny on them.
I am sorry to keep harping back to this, but to me it seems pretty clear that Romer established a level of scrutiny above Rational Basis but below Intermediate. It just glossed over it and called it Rational Basis. Now (despite the fact I find equal protection analysis generally to be pretty flawed) I think the sensible thing is to come out, if you will, and grant Sexuality protection on the same basis as sex-based discrimination, and officially use intermediate review. The alternatives are less palatable to me - carry on as now pretending to give rational basis review but in reality doing more, or create a fourth category, rational basis with teeth, and use that for sexuality based discrimination.
Ok, but do you think that there are no rational bases for a legitimate government interest in proscribing polygamy and bigamy? I mean, surely, if there is full disclosure, knowledge, and consent amongst the parties to the polygamy, the state *clearly *has no reason to deny the license, right?
oh, it’s because it’s practically hard to sort it out? well then, let’s just talk about the crime of bigamy then… why is that one on the books?
It’s completely at odds with your assertion that “Marriage has almost always been an economic arrangement as far as the state is concerned”
I’d say the state absolutely has a distinct interest if allowing polygamy caused a mess that the courts would find nearly impossible to untangle.
Allowing SSM makes things easier on the courts. If two people are married and break-up equitable distribution of assets is pretty settled law (yeah the parties can bicker endlessly but the law and process is there). If a person needs medical decisions made for them the rules for spouses are well established, not so for some dude who just happened to be living with you for the past 30 years.
As for bigamy why are you moving the discussion? While two wives may be “simpler” to adjudicate if needed than five wives you still run into the problems already mentioned. If you want to discuss bigamy and why it is illegal start a new thread. I do not see what it has to do with marriage is meant for procreation. If I am missing it please explain it to me.
Marriage has been defined as a fundamental right which, as already noted, is about the only thing both sides of this debate agree on. IIRC I heard one of the lawyers say the SCOTUS has agreed with that as well.
So, denying a fundamental right is a constitutional issue. Not sure I have ever seen having more than one spouse as being a fundamental right that the courts have ever agreed to.
Lost me there…I do not see that at all. Yes domestic partnerships might provide the same economic benefits as marriage but does it (I really do not know)? Is the ONLY thing different between marriage and domestic partnerships the name? Is separate but equal still equal in your view?
Social stability for one. If a minority of men end up with most of the women there’s by definition a large number of men with no access to women. And polygamy would require the creation of new law, while legalizing SSM just requires asserting that the same laws apply to same sex couples.
Personally I’d be OK with legalizing polygamy; IMHO the end of polygamy as a standard practice for well off men was due to social pressure not the law. As I understand it imposing the Christian prohibition against harems didn’t eliminate harems; it just got the harem girls relabeled as maids. Who just happened to all live together, in a building only the king/Duke/whatever could enter.
Also I don’t see how any law authorizing polygyny would be constitutional unless it also allowed polyandry (ie if a man is allowed more than 1 wife a woman must be allowed more than 1 husband).
I understand what you’re getting at, but I’m having trouble seeing how with the bar that low, Romer and Lawrence would go the way they did. I don’t see how to square your definition of “rational basis” while still keeping those as precedents. As villa put it, it seems that the Supreme Court has put a bit more teeth into rational basis review than your definition has it, at least with respect to homosexuals.
So, rather than requiring intermediate scrutiny to uphold the Perry ruling, the Court could also make explicit that rational basis review is a bit of a higher bar, as the Romer and Lawrence decisions hint at. I mean, “rational basis” is whatever the Supreme Court says it is when you get down to it, right?
Indeed. “National Unity” is clearly useful to the government in advancing purposes (e.g. defense and public order) agreed upon by everyone who accepts that government ought to exist at all. Disrespect to the government by flouting any rule whatsoever it may choose to make is clearly detrimental to some degree to national unity. Ergo, any notion whatsoever that flits through some politician’s head and makes it into the statutes can pass rational review as that term is technically defined.
(The de facto definition as adduced from judicial rulings may diverge from the techincal definition, though, as noted in several previous posts on this thread.)
Perhaps it would help this discussion if we had some other examples of laws, classes, etc. that are subject to rational review? Bricker, some examples?
**any ** law that provides for any disparate treatment in any government program/benefit/requirement/etc. is a violation of the EP clause.
the only things that aren’t reviewed under rational basis are laws that discriminate on racial grounds, gender grounds (but possibly not sexual orientation), illegitimacy, and that’s about it. (other constitutional protections, like speech and “fundamental rights” that are analyzed under due process grounds also use SS/IS review).
disparate taxation, disenfranchisement of felons (actually probably SS - not really sure on this one), age restrictions on driver licensing, age restrictions on alcohol purchases, giving veterans benefits in hiring in the civil service, are all examples of legitimized discrimination via rational basis review.
the thing that you’re missing (not saying that you are missing something, rather that there is something missing) is the whole “purported” thing…
EP analysis was, for a long time, either done under Strict Scrutiny or Rational Basis… then along came Independent Scrutiny in one case which may or may not have carved a new analytical rubric. Then comes “rational basis with bite” - the problem here is that a lot of this jurisprudence has run amok and we could really use a seminal SCOTUS case (as would be the case with gay marriage) to make some definitive statements about the standard of review.
Conservatives have it that homosexuality is a lifestyle choice. People are only homosexual because they choose to be. As such they deserve no more protection than a Dodge driver versus a Chrysler driver.
There is evidence, compelling in my view, that homosexuality is not a “choice”. Simple experience should tell this story. Did anyone reading this sit down one day and think to themselves, “Well, I could be gay or hetero…which should I choose?” I am betting no. Indeed most homosexual people I know have told me, were it a choice, they never would have chosen to be homosexual. Generally this came on them in high school and the need to conform is powerful. Being the gay guy in the locker room was something that’d get you beat up. Not something most teens would willingly choose.
That said I think this goes to what Rumor_Watkins was on about earlier about “facts”. In this case there is a lot of evidence to suggest that being gay is not a choice but just who they are. However, the evidence is not 100% and the door is open to conservatives deeming it a choice and thus no more worthy of protection than a Dodge driver could expect over a Chrysler driver.
That may seem unimportant but I can see no way a court could deny SSM without deeming homosexuality as a lifestyle choice. I may be wrong but to obtain a higher level of scrutiny I think whatever it is needs to be something immutable. Something you cannot change. While it is a reach (a big one in my view) the argument can still, just barely, be plausibly made that homosexuality is a choice and not “who you are”.
It is there that Scalia & Co. can find the wiggle room they need. Cruddy and crappy it’ll be but the only island left to them, small as it is, that I see.
It’s not really a conservative thing. The baseline review standard is “rational basis” - it’s only when the court finds that the discrimination is wrought upon a “suspect classification” that they start implementing strict scrutiny (or intermediate scrutiny). (this is all based in the reasons for the 14th amendment, imho, and how Congress seems incapable of being verbose when crafting constitutional amendments) problem is, there’s no bright line for making that determination - some court has gotta flinch first. alas, the SCOTUS has not graced us with a clear and final determination of whether “sexual orientation” is a suspect class, or if “sexual orientation” qua gender should be treated differently than “sexual orientation” qua marriage rights.
There are plenty of immutable things that aren’t lifestyle choices that are subject to rational basis. age is the glaring one of those. I believe disability is also one of those (but the ADA circumvents the EP characterization)
my thing about facts earlier was really, truly just making my point that trying to craft contrary conclusions of law without being able to shape the conclusions of fact is a fool’s errand. for cereal.
I have not read this thread in its entirety. I’ve come to say that I’ve just finished reading Judge Walker’s decision.
Not being a lawyer, and at about 130 pages, it took a while. But I found it beautiful in a way. The description of the findings going from general to very specific, findings of fact and conclusions.
This is the second legal decision I’ve ever read, the first being from the Kitzmiller trial on Intelligent Design. In both I was struck by the forcefulness of the judges’ language at times. While there is a lot of legalese, it’s very powerful when (as in Kitzmiller) the judge cites “breathtaking inanity” in the arguments of the defendants. Judge Walker in the Prop 8 decision made it very clear that he found the proponents’ arguments lacking logic and evidence.
I would encourage those with enough patience to read it. Especially interesting, I think, is the finding of facts section. Judge Walker dispels with a lot of stereotypes there, finds that denial of marriage to gays and lesbians harms them, harms California economically, and is clearly unconstitutional.
Again, I’m not a lawyer. But after reading the decision, I have a hard time imagining how anyone could poke serious holes in Judge Walker’s opinions and decision. I’m very glad.