I’m not sure anyone could successfully argue that it could pass intermediate scrutiny.
I think you are probably right as to the rational basis test though I hate to admit it. Under true rational basis testing, as long as some government interest is advanced I was under the impression the courts didn’t even bother to look if the interest was (a) of sufficient value or (b) actually going to be protected. RB is pretty much a sham.
But since Romer, “gay” cases seem to have had their own level of scrutiny - rational basis with teeth, if you will. The courts often look not only for a reason, but also for a sufficient reason. Which of course leaves things up to the whim of the judge way too much.
no, his opinion disagrees with it. whether that’s an acceptable conclusion for the purposes of upholding a rational-basis reviewed discriminatory state action… some state courts have felt that that is an acceptable argument, some don’t. the only court whose opinion on the matter really matters hasn’t graced us with its opinion yet.
Agreed with both posts. This thing fails RR, notwithstanding all the chirping here about how a contrary opinion cannot be “rationally” made. No way it passes muster under a higher level of scrutiny.
I think Kennedy casts the deciding vote, and he decides that sexual orientation has Intermediate-level scrutiny, and that’s the ball game.
To be fair, I haven’t done more than skim the opinion. I think it is probably a correct interpretation of the law, given Romer (and to a lesser extent Lawrence). We’ve already got a higher level of scrutiny for gay rights cases. It’s just incredibly inconsistent and poorly defined. Mainly, I guess, because they still call it Rational Basis Review.
You’re probably right on the snout counting too. Kennedy bites the bullet, we get official intermediate review, gay marriage is legalized states-wide, and Utah self combusts.
But that’s not how rational basis works. The courts, in a true rational basis analysis, don’t ask, “Has the legislature been consistent?” or “Is there a better way to accomplish this goal?” A regulation doesn’t have to perfectly preserve marriage procreation in order to pass the rational basis test.
Which is why I say that the better standard here is “intermediate scrutiny.” Not because it delivers the right result, mind you. But because when considering sexual orientation, it seems most analogous to gender and gender discrimination seems very analogous to sexual discrimination.
That’s not what the judge said, and it’s not a basis for marriage given by the state. Moreover, even if the state did say that it was recognizing marriages for the purposes of procreation (something people don’t have to be married to do, by the way), it would have to then ban infertile heterosexual couples from marrying, and you’d have a 14th Amendment issue there. Not only that, but the state would have to justify marrying fertile couples who just don’t want children. The producton of offspring is manifestly NOT the only purpose of marriage so trying to point to that as a rational basis is a non-starter.
I fear it won’t matter, though. The Supreme Court is still packed with Catholic bigots. Ultimately, the Constitution won’t get in their way of upholding Prop 8 unless one of them retires before the appeal gets to them.
I am not so sure the “facts” of a case are as malleable as you suggest.
“Facts”, as determined by the court and relevant to deciding the case, are treated as, “LA is south of San Francisco.” I may be mistaken but it is also my impression that the appeals court has to give great deference to the facts found in the original trial unless they can be shown to be clearly erroneous. Judge Walker compiled quite a laundry list of evidence in support of his conclusion.
Now, one may draw different conclusions on what those facts add up to and how they should sway the case. The facts remain the facts though and the appeals court will accept them.
And in this case it seems the defense was demolished. They brought two experts both of whom were dismantled by the plaintiffs and were even eventually giving testimony supporting the plaintiffs.
So, I remain interested in seeing a compelling and rational analysis, using the facts in evidence in this case, that is the opposite of the decision rendered.
The decision in that case turned on the fact that CLS’ attorneys stipulated that the policy under which CLS was denied funding existed. I don’t think you can take much from that case. In any case, even if it had been decided on its merits, it doesn’t concern class at all; just protected speech. It wouldn’t have mattered if CLS’ policy was to exclude anyone who thought processed cheese was evil.
As it turns out, it probably didn’t exist, but CLS had already screwed up.
At the risk of creating a soundbite that doesn’t look good out of context: we don’t need facts.
Seriously: true rational basis review doesn’t turn on what facts the legislature actually found or could have found. The question is, “Can the court conceive of a reason that the legislature could have made this law?” and “Is the law related to a legitimate government objective?”
None of those are questions of fact.
The legislature could believe that marriage is intended to provide a union for procreation. And the legislature could thus limit marriage to a man and a woman.
That’s it.
You can’t adduce facts to assail that finding. It’s not about what the legislature DOES believe, but what they could believe.
No it wouldn’t have to ban infertile couples. This just isn’t how Rational Basis review works. Even if the state says its interest in marriage is based on procreation, the fact you can procreate outside of marriage and heterosexuals who cannot procreate can marry doesn’t mean that instantaneously gay people should be allowed to marry.
You don’t win a rational basis case by saying - well under that rationale they should be banned too. It doesn’t work that way. That can provide evidence for your argument, but you pretty much have to show the law is based on animus towards a particular group, and that even if you can show that, you have to show there aren’t other possible reasons.
Now, that infertile hetereosexuals are allowed to marry suggests that the law banning gay people from marrying is an animus based sham, and is not based on a desire to protect the child bearing role. However, it doesn’t take a legal genius to work out that you can counter that argument by maintaining, as the state, that the law isn’t perfect, but the cost of fertility testing every couple before marriage is not justified by such an interest, but there is no state cost in preventing SSM.
It’s an offensive, objectionable argument, but it is sufficient to pass rational basis. I don’t think people realize just how low a bar this is.
I think you are wrong. My guess on this is 5-4 for sexual orientation getting intermediate scrutiny (because, as Bricker points out, it’s just the legally correct outcome). The opinion will be by Kennedy. There will be a bunch of concurrences, and a separate opinion by Roberts, supporting the decision but opposing higher scrutiny (OK I am way out on a limb with that one). There’ll be three separate dissents. Scalia will write an entertainingly extreme dissent about the culture wars, Alito will focus on some minutiae, and Thomas will bemoan the infringement on the powers of states.
That’s not how rational basis review works. The state doesn’t have to pick the best method of advancing its supposed goal. You cannot say, “The state would have to then ban infertile heterosexual couples from marrying,” because rational basis review doesn’t care about that. And you can’t say that because the state didn’t offer that reason at trial, the court can’t consider it, because rational basis review doesn’t care what the ACTUAL reasons might be, but rather what reasons MIGHT exist.
In intermediate scrutiny, on the other hand, the law must further an important government interest, and do so in a way that is substantially related to that interest. There’s the place this discussion needs to be.
I totally can’t wait for Friday to see what the Pro-Prop 8’ers come up with. Considering even snippets of Walker’s decision were harsh and derogatory to the defense, I’ll be curious to see what they can come up with to stay his decision to allow gay marriages immediately
Explain how allowing gay people to marry would interfere with this (completely made up bullshit) procreative “purpose” to marriage. Gay people can and do procreate and they can also adopt.
Domestic partnerships lack the social meaning associated with
marriage,
Same-sex couples are identical to opposite-sex couples in the
characteristics relevant to the ability to form successful
marital unions.
The availability of domestic partnership does not provide gays
and lesbians with a status equivalent to marriage because the
cultural meaning of marriage and its associated benefits are
intentionally withheld from same-sex couples in domestic
partnerships.
Proposition 8 places the force of law behind stigmas against
gays and lesbians, including: gays and lesbians do not have
intimate relationships similar to heterosexual couples; gays
and lesbians are not as good as heterosexuals; and gay and
lesbian relationships do not deserve the full recognition of
society.
Proposition 8 perpetuates the
stereotype that gays and lesbians are incapable of forming
long-term loving relationships and that gays and lesbians are
not good parents.
Proposition 8 results in frequent reminders for gays and
lesbians in committed long-term relationships that their
relationships are not as highly valued as opposite-sex
relationships.
Stereotypes and misinformation have resulted in social and
legal disadvantages for gays and lesbians.
now, if you can’t see how those findings aren’t really “factual” and are couched in a manner to support the conclusions made in the opinion…
so you really don’t think that asking to draw legal conclusions from these findings of fact is not fairly characterized as playing against a stacked deck?
I’m not disagreeing with this - once they are decided they have weight. My problem is with the “deciding” them part.
I’m not discussing what the COA does or does not do with the factual findings - my comment was directed at the request that a contrary conclusion of law be written, given the courts factual findings.
Rational basis review is fine with a made up, bullshit reason. The mere fact that it’s made up and bullshit does not hurt it one bit under rational basis review.
So the idea is: the purpose of state recognition of marriage is to provide a legally and financially stable construct to encourage people to procreate.
Since gay couples cannot procreate with each other, we won’t recognize those unions as marriages.
That’s all.
If you ask anything like, “Then why do you let infertile couples marry?” you’ve missed the boat on how rational basis review works.
Adoption isn’t relevant, because the adopted child was already procreated by someone else. That this procreation happened outside marriage is also not relevant.
I do not doubt what you say is true as regards rational basis review. It is scary that the bar be so stunningly low as to allow just about anything to deny a constitutional right but it is what it is.
That said I still do not understand why the facts are unimportant even under rational basis.
The facts show that marriage has never been about procreation as far as the state is concerned. That being the case how can the state say it is their rational basis for denying SSM?
You might then say it wasn’t about procreation previously but now the states are saying this is what it is about. Well, homosexual people can and do procreate (lesbians can be artificially inseminated, gay men can use surrogates…either may have already had children from a previous heterosexual relationship), they can and do start families and have children. So, denying SSM due to procreation is again in the realm of equal protection of the law.
Bricker, in the decision the judge went to great pains to point out that in California in fact there has never been any indication that procreation was or is a necessary component to marriage. Isn’t that rational basis? Not that the legislature couldn’t do something, but that it hasn’t done something.
no, this is what you don’t get. **This **finder has fact has concluded that marriage has never been about procreation. It is not the same thing as saying “the facts show”
What does “with each other” have to do with anything. Infertile couples can’t do that either, so you have an equal protection problem there.
And there is nothing in state law that says procreation has anything to do with the purpose of marriage in California. You seem to be saying that no purpose needs to be stipulated in the law, that a judge is allowed to make up any purpose he wants, so why can’t another judge decide that the purpose of marriage is to encourage anal sex?