# VA attorney general refuses to defend gay marriage ban **URL:** \ **Category:** Great Debates\ **Created:** [January 23, 2014, 4:52pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535 "2014-01-23T16:52:27Z")\ **Posts on this page:** 20\ **Page:** 13
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [January 31, 2014, 7:50am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/241 "2014-01-31T07:50:30Z")
> [@YogSosoth](#): > > … > > This has been a right wing version of history on the abortion debate. Not saying you’re making it on purpose, but I’ve heard right wingers say that exact same thing. They said that because the courts decided abortion, it removed gradual acceptance of it and forced it into a continually bitter national issue. I disagree. I think many people who have so much invested in opposing abortion or opposing gay marriage will never come around anyways. … Not just right wingers. Justice Ginsburg is [on record](http://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit) stating that Roe v Wade was poorly decided. “My criticism of Roe is that it seemed to have stopped the momentum on the side of change.” She would have preferred a more gradual process. Further criticism is that Roe was decided on the basis of the doctor’s freedom to practice, not on the woman’s rights. At least in this respect many of the SSM court cases seem to be doing it right by addressing the matter as a fundamental freedom issue. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 31, 2014, 1:45pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/242 "2014-01-31T13:45:22Z")
> [@YogSosoth](#): > > Consider me mocked, I guess? I’m glad that at least, for your sake, you weren’t trying to pass that off as a serious argument though Mocking can be a form of argument. > [@](#): > > Like Triponus said, its just a prediction. Stop making predictions then. Tell us if you think a war would be justified, if it broke out. Or if it’s justified for you to start one if you don’t get your way. > [@](#): > > And? So? You take the rule of law waaaay too lightly. It’s dangerous, for you and the rest of us. I’m a strong supporter of civil rights, and of gay marriage, but I fear you more than those who oppose it. You would only make things worse. You care about nothing but the short term. You’re impatient, and rash. To use a combat analogy - you might win battles, but you’d lose the war. > [@](#): > > So I guess this is officially the point where you’ve run out of pedantic arguments to make and start repeating yourself? Do us both a favor and don’t reply to this line, I’m just going to ignore it As if you’re not repeating yourself too. > [@](#): > > Course its the same thing. Tactics may have changed, but its the same thing. And they will do it and it will be glorious and Virginia will be a gay paradise just as soon as the appeals process is over. 😃 And that will all be worth it, ignoring bad laws is always a good thing You’re so self-delusionary. Your gay paradise could disappear as fast as it comes, because now those in power can do whatever they want. No more rule of law to protect you. The next AG could just take it all away, and maybe even go further. You would fight, but if you lose, that’s it. No appeal to the rule of law, no complaining about abuse of power. Nobody’s going to listen to that from you. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 31, 2014, 1:50pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/243 "2014-01-31T13:50:56Z")
> [@Iggy](#): > > Not just right wingers. Justice Ginsburg is [on record](http://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit) stating that Roe v Wade was poorly decided. “My criticism of Roe is that it seemed to have stopped the momentum on the side of change.” She would have preferred a more gradual process. > > Further criticism is that Roe was decided on the basis of the doctor’s freedom to practice, not on the woman’s rights. At least in this respect many of the SSM court cases seem to be doing it right by addressing the matter as a fundamental freedom issue. And this highlights the other problem - the reliance on court decision rather than building consensus. Now that the makeup of the courts is more conservative and is chipping away at abortion rights, there’s little to fall back on in many states or the federal government. I agree that rights should be enforced, by courts when necessary, ignoring political considerations too. But when trying to build support for the concept of a right that hasn’t been asserted before, it can take time and work to make it last. Yogosoth is right that Roe has made some people grow up with the idea of that right, and expect it, but it has also made the other side push back harder. If the courts stop upholding it, we could end up right back where we started, with some states with easy access to abortion and some banning it completely. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 31, 2014, 1:54pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/244 "2014-01-31T13:54:40Z")
Let me pose the question this way, Yogosoth - suppose the courts rule against Herring. The gay marriage ban is upheld. All the way to the SCOTUS. What do you do then? Civil disobedience (not sure how you do that when the state issues licenses for marriage - storm the clerk’s office and steal them?) Or civil war? Terrorist attacks? What? If you say no to any of these, tell us why. After all, you’re right. How can you sit back and not do everything possible to preserve the rights of certain people? What makes you reject those tactics exactly? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 31, 2014, 2:15pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/245 "2014-01-31T14:15:56Z")
> [@jtgain](#): > > But I would also think that if Kennedy was inclined to uphold Prop 8 on narrow or broad terms that Scalia would have strained to find some sort of standing and switched sides; at which point Sotomayor might have NOT found standing to make it a majority against standing. Roberts would do a repeat performance of his ACA ruling trying to look like a statesman and go against the grain so he asked Scalia and Sotomayor to stick with their original standing arguments and keep the status quo (I’m totally WAGing here). > > However, from all of his opinions, Kennedy does not seem to want to take that extra step. I’m thinking that he agrees with freedom of sexuality and against unnecessary government intrusion into a person’s life (Casey, Lawrence) and wants to limit the powers of the federal government into state activities (Lopez, Morrison, Perry) but simply cannot bring himself to say that the United States Constitution requires a state to recognize same sex marriage. I think that with his conservative judicial approach he may have drawn the line between personal freedom and required government recognition of that freedom. Again, just a WAG, but I think it is a line he is not yet ready to cross. Scalia is the weak point in my theory, I admit.([Sotomayor is just a Papist puppet](http://www.usnews.com/opinion/blogs/Jamie-Stiehm/2014/01/07/the-catholic-supreme-courts-war-on-women), so that’s easy). He (and Thomas) strike me as the most likely to abandon a “consensus” plan in favor of the “right” result, so “going along to get along” is an implausible theory. There’s too many variables for my theory to have any real logical accuracy: it’s based on the assumption that Kennedy said: “I think there’s standing and I think the result should be …” and that that motivated the other justices. I think you’re right about Kennedy though. Which, of course, is why the 9th Circuit completely changed direction from the district court and wrote the type of opinion that Kennedy could get behind. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 31, 2014, 2:19pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/246 "2014-01-31T14:19:15Z")
He’s got to get off his fence eventually. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 31, 2014, 3:24pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/247 "2014-01-31T15:24:05Z")
> [@Really\_Not\_All\_That\_Bright](#): > > He’s got to get off his fence eventually. He does. And it’s going to be sooner than he likes, because one of these cases is going to create a circuit split that they, really, have to review. And I think he’s got two options to avoid the type of broad pronouncement that I think he’s uncomfortable with: he can focus on the perceived animus underlying the efforts in states to insulate their marriage laws from state court challenges. It would have the odd effect of making a case like New Mexico (until recently), which never “banned” same-sex marriage, likely permissible under the Federal constitution because there would be no “animus”-inspired action, but I don’t know how many (if any) other states there are like that. Or, he can draw the line at “personal freedom” and say that you can’t criminalize this sort of behavior, but there’s no constitutional mandate for the government to validate it. Kennedy likes limiting principles (we all know this). Those give him that. Frankly (and maybe I give judges too much credit), I think he’s hesitant to find a constitutional right to government recognition of your personal relationships because it’s hard to find a limiting principle (Kennedy’s fondness for limiting principles is also why I find citing Scalia’s parade of horribles as the “holding” of Windsor to be disingenuous). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 31, 2014, 3:47pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/248 "2014-01-31T15:47:14Z")
I don’t think reliance on animus is sufficient. That’s how we got rational basis with bite in the first place; the existence of an impermissible motivating factor has never been a part of pure rational basis. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 31, 2014, 4:17pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/249 "2014-01-31T16:17:09Z")
> [@lance\_strongarm](#): > > Stop making predictions then. No. > [@lance\_strongarm](#): > > Tell us if you think a war would be justified, if it broke out. Or if it’s justified for you to start one if you don’t get your way. :rolleyes: Already told you and explained it a few times. Its not my fault if you don’t get it > [@lance\_strongarm](#): > > You take the rule of law waaaay too lightly. It’s dangerous, for you and the rest of us. > > I’m a strong supporter of civil rights, and of gay marriage, but I fear you more than those who oppose it. You would only make things worse. You care about nothing but the short term. You’re impatient, and rash. To use a combat analogy - you might win battles, but you’d lose the war. :rolleyes: Already explained this too, using historical examples. > [@lance\_strongarm](#): > > You would fight, but if you lose, that’s it. No appeal to the rule of law, no complaining about abuse of power. Nobody’s going to listen to that from you. :rolleyes: You know, this isn’t a cartoon where the heroes have to win constantly and if the bad guys win once, its all over. > [@lance\_strongarm](#): > > Let me pose the question this way, Yogosoth - suppose the courts rule against Herring. The gay marriage ban is upheld. All the way to the SCOTUS. > > What do you do then? Civil disobedience (not sure how you do that when the state issues licenses for marriage - storm the clerk’s office and steal them?) > > Or civil war? Terrorist attacks? What? > > If you say no to any of these, tell us why. After all, you’re right. How can you sit back and not do everything possible to preserve the rights of certain people? What makes you reject those tactics exactly? :rolleyes: Already answered this a few times. The way you’re going you’d eventually sever Loki’s head all the way down to his toes ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 31, 2014, 4:38pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/250 "2014-01-31T16:38:48Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I don’t think reliance on animus is sufficient. That’s how we got rational basis with bite in the first place; the existence of an impermissible motivating factor has never been a part of pure rational basis. _I_ think the animus approach is insufficent. And I think it’s done great damage to rational basis review more broadly. But this Senate would never confirm me to the Court, so my opinion is of less relevance. I was just trying to predict a way for Kennedy (as Kennedy) to deal with it. And he, apparently, thinks that motive is now a part of rational basis review and it gives him an “out.” ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 31, 2014, 4:42pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/251 "2014-01-31T16:42:40Z")
> [@YogSosoth](#): > > :rolleyes: Already told you and explained it a few times. Its not my fault if you don’t get it > > :rolleyes: Already explained this too, using historical examples. > > :rolleyes: You know, this isn’t a cartoon where the heroes have to win constantly and if the bad guys win once, its all over. > > :rolleyes: Already answered this a few times. The way you’re going you’d eventually sever Loki’s head all the way down to his toes You may have answered, but not satisfactorily. You’ve failed to defend your views. I propose a civil war and terrorist attacks until gays have the right to marry in Virginia. If you disagree, you’re an evil rightwinger who hates gays. LOL. Let’s end this conversation. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 31, 2014, 4:47pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/252 "2014-01-31T16:47:17Z")
> [@Falchion](#): > > …this Senate would never confirm me to the Court, so my opinion is of less relevance. Out of curiosity, which of the litmus tests would you fail? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [January 31, 2014, 5:34pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/253 "2014-01-31T17:34:36Z")
Heh, gay marriage is harmless but allowing it will tear America apart, apparently. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 4, 2014, 6:45pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/254 "2014-02-04T18:45:09Z")
I’ll also agree that the animus approach is insufficient and confusing. First, Kennedy must certainly mean that animus, without more, is not a rational basis. Obviously when we enact harsh sentences against rapists and murderers, there is a certain amount of animus involved, but there is also strong rational bases for passing these laws. But if that is the case, then Kennedy fails to address Scalia’s assertion that public health and morality have always been held to be valid state concerns. The laws against adult incest, polygamy, bestiality, and prostitution likewise would have to struck down as being nothing more than animus against these groups. I also think that O’Connor in Casey helped this erosion of the rational basis test. She found that abortion was not a fundamental right subject to strict scrutiny but merely that the government couldn’t impose an “undue burden” on it. Again, like Scalia said, if it’s not a right subject to strict scrutiny, then what “burden” is “due” such a liberty other than rational basis? The correct answer, it seems, has to be that sexual orientation and abortion are either fundamental rights or not. I can’t comprehend these rootless standards. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 4, 2014, 7:32pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/255 "2014-02-04T19:32:45Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Out of curiosity, which of the litmus tests would you fail? Well, the fact that I have strong textualist leanings would disqualify me at the moment. My culture warrior bona fides are pretty weak (which wouldn’t appeal to either side). The reality though is that I despise results-based judging; which would make me too much of a wild card for either party (although, obviously, I have strong “conservative” tendencies). > [@jtgain](#): > > I’ll also agree that the animus approach is insufficient and confusing. First, Kennedy must certainly mean that animus, without more, is not a rational basis. Obviously when we enact harsh sentences against rapists and murderers, there is a certain amount of animus involved, but there is also strong rational bases for passing these laws. I think everyone agrees that animus, alone, will always fail rational basis. The problem is that (under traditional rational basis analysis) the court is supposed to accept after the fact justifications instead of determining actual motive. I think that _Windsor_ was really the death of rational basis review as practiced. The idea that the federal government wanted a uniform standard of dealing with marriages (in a system with state-by-state divergences in marriage law) was absolutely rational. But Kennedy says, forget that, I’ve determined that the people who enacted it were all just hateful bigots, so animus. Maybe he’s right, but he just tossed actual rational basis review out the window. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 4, 2014, 7:46pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/256 "2014-02-04T19:46:45Z")
It would be okay if he’d just say so. I have no problem with establishing a fourth level of scrutiny; in fact, I’ve always thought the gap between intermediate scrutiny and rational basis is too broad.\* The most subjective part of equal protection/fundamental rights analysis is deciding what interests get what level of review; given that, it makes sense to soften the demarcations between levels, or add one. \*“Wait, so now the challenger has the burden _and_ the government only has to show a rational linkage?” ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 4, 2014, 8:05pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/257 "2014-02-04T20:05:45Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It would be okay if he’d just say so. I have no problem with establishing a fourth level of scrutiny; in fact, I’ve always thought the gap between intermediate scrutiny and rational basis is too broad.\* The most subjective part of equal protection/fundamental rights analysis is deciding what interests get what level of review; given that, it makes sense to soften the demarcations between levels, or add one. > > \*“Wait, so now the challenger has the burden _and_ the government only has to show a rational linkage?” I’m rather fond of the two-tier model. General deference to the democractic political process on the one hand (although, I think traditional rational basis is probably too permissive). And then a hard-as-hell-to-establish standard for very specific subsets of people (basically, just black people) and, more usefully, clearly defined and accepted rights. The problem has become that the lines have become too murky. No one really knows what’s a fundamental right and, certainly, no one knows what is a suspect class (and do they change over time?). Obviously, lawyers want to get their case into heightened scrutiny, becuase it’s hard to lose; but it’s made a mess of things. The problem with a three or four tiered system is that I have no idea how you decide who goes where. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 4, 2014, 8:35pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/258 "2014-02-04T20:35:25Z")
That’s kind of my point. Nobody really knows what rights are fundamental (and neither the court’s liberal or conservative wings do much to clear the waters), but in the two-tiered system that determination is more important than anything else. As you say, once you get into heightened scrutiny you’re probably going to win, and under rational basis you’re probably going to lose. I would settle for a more sensible form of rational basis, I suppose. For some reason I find the concept that governments can offer _post hoc_ justifications without a shred of evidence that they were considered at the time appalling. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 5, 2014, 5:26am UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/259 "2014-02-05T05:26:17Z")
The problem with a harsher rational basis standard is that the court simply substitutes its judgment for that of the legislature. Presumably if a law passed both houses of the state legislature and it was signed by the Governor, there was some justifiable basis for it. Unless a fundamental right is implicated, it should be very, very rare for a court to say that this duly passed law simply isn’t rational. To lessen the standard to allow the court to strike down more laws because it doesn’t feel the law is “rational” transforms it into a super-legislature that determines whether the law is good or bad. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 5, 2014, 5:09pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/260 "2014-02-05T17:09:46Z")
> [@jtgain](#): > > The problem with a harsher rational basis standard is that the court simply substitutes its judgment for that of the legislature. Yes, it does, by interpreting the constitution. That is true whether you are using rational basis, rational basis with bite, intermediate scrutiny or strict scrutiny. Unless you do away with judicial review, there will always be a substitution of judgment. The question is how much deference should be given to the legislature. In cases involving more fundamental rights, animus, and/or protected classes, the legislature is (properly) given less deference. > [@jtgain](#): > > Unless a fundamental right is implicated, it should be very, very rare for a court to say that this duly passed law simply isn’t rational. This method of interpreting the judiciary’s role in government flies in the face of the concepts of limited government, checks and balances, and protecting of individual rights. > [@jtgain](#): > > To lessen the standard to allow the court to strike down more laws because it doesn’t feel the law is “rational” transforms it into a super-legislature that determines whether the law is good or bad. _sigh_. I tire of this particular talking point. The judiciary isn’t judging the goodness of badness of the law, it’s judging its constitutionality. That’s kinda the bigest role of the judiciary, to act on a check of the legislature, to limit the tyranny of the majority, and to protect the rights of citizens. If you want a judiciary to simply wash it’s hands at every legislative pronouncement, you’re basically turning a 3 tiered political system into a 2 tiered one. And I think the history of the battle for civil rights in this country clearly shows that that isn’t the best way to go. [Previous page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=12) [Next page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=14)