Having now read the opinion, it strikes me as an unusually poor application of rational basis review. Both in terms of the burden of proof and the actual merits.
We need to go ahead and give gays “heightened” status and restore some sense to these analyses.
From your lips… As to the analysis, blame the defendants:
The court managed to avoid deferring to the legislature’s policy choices because the state phrased them badly.
Slightly off topic: Oklahoma’s marriage statute is remarkable for its non-neutral language:
Well, I think that the “procreative” argument is sufficient for an actual rational basis review (the claim against it is that it’s underinclusive and overinclusive, and that doesn’t defeat rational basis. Also, it’s a 1L truism that it’s the nature of rules).
But regardless, he goes through it by finding that the plaintiff makes a prima facia showing a discrimination, and then has the state proffer justifications for the law, and then decides that they’re sufficiently compelling. That’s heightened scrutiny. Gone is the “strong presumption” of constitutionality, gone is the burden on the plaintiff to show a lack of rationality, (gone is the fact that the rational basis doesn’t even need to be the actual reason).
I’m ambivalent on same-sex marriage as a policy matter and I’ve certainly not been convinced that it’s a constitutional imperative (which, I guess, makes me a hateful bigot). But I care a great deal more about the damage that these intellectual dishonest approaches do to the art of legal analysis. (although, I certainly appreciate the partisan appeal of calling one’s opponents “irrational”).
Edit:
I don’t know how that can possibly be constitutional.
Why not? It includes all denominations who authorize people to preach the Gospel. And even Jews! 
I’m not sure I agree. It’s a close question, but I don’t see any rational relationship between procreation and limiting marriage to opposite-sex couples. It appears to rest on a presumption that straight people will stop getting married once The Gays can do it.
I know. Clearly it violates the establishment clause to single out Jews for favorable treatment. Christians need to actually preach the gospel and be authorize to do it. Or just be a learned Jew of age.
Clearly, favoring the Jews.
I’m not sure that’s the presumption either way. But the issue, I think, is whether you view the marriage laws as creating a special status for opposite-sex couples or excluding same-sex couples from an otherwise extant status. I think it’s the former (see, for example, the New Mexico opinion where there’s no specific ban). In that case, creating a status for the couples that are most likely to procreate (based on rough biological categories, which is the way to differentiate that is least invasive of privacy) under the theory that that status is good for the offspring is rational. Frankly, I think the greatest constitutional liability of the whole debate is the wave of state amendments which are designed to prevent state courts from changing the marriage laws but have the effect (and appearance) of “banning” same sex marriage. I think that the New Mexico opinion is a good example of how this is a question of expanding the category of elligible persons rather than “banning” a category from access.
That’s an interesting point; in some sense, “marriage defense” amendments arguably make it more likely that same-sex marriage will become the law.
I think it does. Beyond which, you get questions like the one posed in California: You have Laws and they get overturned by the state court. So you adopt Amendment in order to return to Laws. Are you look at the rational basis behind the Amendment or the Laws? If you want to adopt a Romer-style animus test, can’t you say that “sure, there’s no animus behind the traditional development of marriage laws, but this amendment here: pure animus.”
The other thing that I find interesting is that making any allowance for same-sex couples weakens the state’s defense of the marriage laws. Prop 8 was a good example, where the whole point of Reinhardt’s opinion is that the state wasn’t excluding the benefits of marriage from same-sex couples, all they did was take away the name. A state that allows same-sex adoptions is going to have a weaker “opital child rearing” argument than one that bans it. Peverse incentives, in a way.
I think that’s an excellent point - many of the marriage amendments in the states don’t just ban same-sex marriage but also civil unions, partnerships, and in some cases any sort of state recognition of any kind of same-sex relationship. I’d agree with you that “responsible procreation” could pass the basic rational basis test (although I don’t think it would pass any higher test, including the elusive rational-basis-with-bite), but at the same time it’s hard to look at an amendment like Utah’s and conclude that it is for any purpose besides preventing same-sex couples from ordering their domestic affairs like straight couples are able to do.
It seems from reading these cases that the district courts really just want the Supreme Court to come down one way or the other as to these issues and stop soft-shoeing around them. Are gays a suspect class? Do they get heightened scrutiny, or not? I don’t think it’s unreasonable for the district courts to be confused about this, as I certainly am.
Don’t feel bad. The Supreme Court is confused about it too. The faculty at my law school seriously considered leaving same-sex classifications out of the constitutional law syllabus the year I took it because they thought there was zero chance that it would look similar when I graduated. And they were right (though they didn’t remove it from the syllabus.)
I was taking family law when Lawrence v. Texas was decided, and we spent a while discussing whether the dissent’s prediction that SSM was now inevitable was right or not. But of course the court has refused to come out and say yes or no, even now. Like the Oklahoma district court I think it’s a reasonable reading of Lawrence and Windsor as a whole but the cases don’t explicitly say so and the reasoning as to why isn’t that clear.
Personally, and not that anyone really cares what I think about it, I’d say that a law allowing me to marry a woman but not a man should be subjected to intermediate scrutiny and I don’t think it would survive that standard of review.
Latest news:
The hired guns for both sides have been decided.
Interestingly, he’s agreed to cap his fee for the appeal to the 10th circuit, and (apparently) in return a conservative think tank has hired him to, er, hmm, write white papers. Mormons in action.
On the other side,
From the same article, Oklahoma says that it will wait to see the outcome from the Utah appeal.
Next up, Utah has now asked for more time, and wants a 10-day extension. One guesses that since the order has been stayed, they are in a little less of a rush now.
From here.
Oklahoma is waiting to see what happens to Utah’s appeal before mounting a defense of their own.
As I said earlier in the thread, I think we’re at a tipping point, and the end of gay marriage bans will be in sight.
Note that this isn’t a legal argument, but that I bet that without SCOTUS ruling specifically allowing state to ban gay marriages, the various judges will continue to strike down the bans, and I believe SCOTUS sees the writing on the wall as well.
I’ve argued for that outcome all along, although generally I think laws classifying people by orientation should receive strict scrutiny (what more “discrete and insular minority” is there than homosexuals?)
In other news, the first post-Windsor gay marriage lawsuit has been filed in Florida.
The problem is that strict scrutiny is intended for minorities that are, effectively, excluded from the political process (and therefore must resort to the judicial process). I think you’d have to agree that the political success of homosexuals has been rather astounding. Mark Herring won’t defend the constitutionality of a law that he voted for. I don’t think there’s any real question that the country, as a whole, is on track to (quickly) accept same-sex marriage; for me, that’s a reason not to impose it judicially.
The other thing, which sets homosexuals apart from other “discrete and insular minorities,” is that they’re only really discrete and insular (and, for that matter, identifiable) when the focus is on things related to the orientation (sex, marriage, etc.).
That’s like saying that black people are only a discrete minority when people classify them based on their race. Or that a person whose ethnicity is not apparent from a casual inspection can’t be the victim of discrimination.
That’s not my point at all nor even a fair interpretation of it.
My point is that the “suspect class” appellation works best for groups that are obviously identifiable based on discerete (and apparent) characteristics (that individual members of these groups may not be readily identifiable doesn’t change that) and that the concern is that the groups are entirely excluded from the political process. My other point is that the prejudicial treatment of homosexuals is tied, in these contexts at least, to the “discrete characteristics” that you think makes them the exemplar of “discrete and insular.” It’s the difference between “no synagogues in this town” and “jews can’t vote.” (Race is a poor example becuase I’m not sure of an equivalent set of “black things” that “black people” want to do; but they may exist). What makes (some) religious, racial, and national minorities “disrete and insular” is that they are readily subjected to discrimination in areas unrelated to the characteristics of the class.
That, and the LDS Church missionary effort was starting to make serious inroads into places like Brazil, where the question of just who was brown because he was of African descent and who was brown because he was of aboriginal American descent was a sticky one.
“Does the dude with the light brown skin, aquiline nose, and blond afro get the priesthood?”
“I dunno. Maybe we need to rethink this whole thing.”
At least from the wikipedia article on marriage there are only 16 states left that polling shows a majority opposed, which is a good sign. We could be less than a decade from away the last states falling. It’ll be interesting to see what SCOTUS says when the 10th circuit decision is appealed. (which it will be either way they decide)
The schedule is such that I don’t see how an appeal to the Supreme Court could be heard this term. So the Supreme Court has put it off until sometime in 2015, probably. By then, a few more states will have equal marriage (Illinois, Oregon, Pennsylvania?, …) and it will look even more like the public has decided.
The big question (especially to people in the 10th Circuit states) is what happens to the current stay of the judicial decision allowing gay marriage. If the 10th circuit appeal upholds that decision, does the stay continue un effect for the months or years while an appeal to the Supreme Court is pending?
Maybe some legal expert can look at the text of the current stay and explain when it ends? Does it last until the 10th Circuit appeal is decided, or until all possible appeals are decided, or what? Or does the 10th Circuit have to specify when their decision takes effect? Or does it take effect immediately. and Utah would have to petition for another stay while they appeal to the Supreme Court?
Legal experts, help!
Here is the text of the order granting the stay -
The application for stay presented to Justice Sotomayor and
by her referred to the Court is granted. The permanent
injunction issued by the United States District Court for the
District of Utah, case No. 2:13-cv-217, on December 20, 2013, is
stayed pending final disposition of the appeal by the United
States Court of Appeals for the Tenth Circuit.