# 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:** 14\ **Page:** 14
**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:** [February 5, 2014, 5:23pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/261 "2014-02-05T17:23:17Z")
> [@jtgain](#): > > 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. Really? What if they pass a law imposing white-only and black-only schools? Presumably justifiable? > [@](#): > > 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. No, the rational party is how the courts go about determining if there’s a reason, other than violating rights, for the law that should have greater weight. It doesn’t rule simply based on whether it thinks it is rational or not. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 5, 2014, 5:28pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/262 "2014-02-05T17:28:37Z")
The rational basis test need not be either rational or a basis or a test. Discuss. The fact that it is possible to dream up some bullshit after the fact as a rationalization does not eliminate the animus-only claim. ---
**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 5, 2014, 8:18pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/263 "2014-02-05T20:18:58Z")
> [@jtgain](#): > > 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. No, the court substitutes its determination of _constitutionality_ for that of the legislature. Consideration of whether the legislation is a good idea is entirely separate from consideration of whether it burdens a fundamental right or treats similarly situated people differently. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 6, 2014, 4:26pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/264 "2014-02-06T16:26:27Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, the court substitutes its determination of _constitutionality_ for that of the legislature. Consideration of whether the legislation is a good idea is entirely separate from consideration of whether it burdens a fundamental right or treats similarly situated people differently. That is correct, of course, in theory. The problem is that it’s hard to look at these “new” rational basis cases as doing that. Courts are quite clearly weighing the proffered goals of a law against the alternative options and deciding whether it’s good enough. That’s why you have judges agast at something that we all learned 1L year: rules (as opposed to standards), by their nature, are always both overinclusive and underinclusive. It’s been the explicit holding that, under rational basis, that’s a legislative concern, yet there it is in the new rational basis opinions. ---
**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 6, 2014, 4:29pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/265 "2014-02-06T16:29:06Z")
Sure, but whether or not courts are applying a standard correctly isn’t really the appropriate policy judgment. The applicable one is whether the standard _can_ be applied correctly. You are talking about a problem on which courts must defer to the executive - appointment power. 😉 ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 6, 2014, 4:43pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/266 "2014-02-06T16:43:12Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Sure, but whether or not courts are applying a standard correctly isn’t really the appropriate policy judgment. The applicable one is whether the standard _can_ be applied correctly. You are talking about a problem on which courts must defer to the executive - appointment power. 😉 What I’m saying though is that the “standard” (such as it is) requires it. Rational basis says, basically: This is the kind of thing the government can do, and they can do this particular thing absent extraordinary circumstances. Strict scrutiny says: this is the kind of thing government can’t do, so they can only do it in extraordinary circumstances. New Rational Basis says: Are the reasons for doing it good enough? That requires a legislative-type answer. I don’t see how it doesn’t. You’re basically saying, this is the sort of thing that government can probably do, but are they doing it in a way that I think makes sense? That’s not a judicial standard. ---
**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 6, 2014, 4:55pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/267 "2014-02-06T16:55:44Z")
I’m not saying the present RBWB standard is workable. I’m saying some form of Rational Basis Plus[sup]TM[/sup] is workable, and personally I’d make it the same, except that the government can’t throw out _any_ plausible justification as its legitimate interest. That is, there would have to be some support for the asserted interest in the legislative record. ---
**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 6, 2014, 5:02pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/268 "2014-02-06T17:02:49Z")
In related news, a decision in [the pending Virginia case](http://www.afer.org/blog/marriage-equality-ruling-expected-soon-in-virginia/) could come down any day now. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 6, 2014, 5:20pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/269 "2014-02-06T17:20:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I’m not saying the present RBWB standard is workable. I’m saying some form of Rational Basis Plus[sup]TM[/sup] is workable, and personally I’d make it the same, except that the government can’t throw out _any_ plausible justification as its legitimate interest. That is, there would have to be some support for the asserted interest in the legislative record. I’m not opposed to that. I think the principle reason for the “any justification” approach is that, otherwise, they can just renact the law and say the right things into the record (assuming political support). Which, it seems, gives the court a overridable legislative veto. > [@Really\_Not\_All\_That\_Bright](#): > > In related news, a decision in [the pending Virginia case](http://www.afer.org/blog/marriage-equality-ruling-expected-soon-in-virginia/) could come down any day now. If true, she must have written the opinion before the hearing. ---
**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 6, 2014, 5:25pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/270 "2014-02-06T17:25:32Z")
> [@Falchion](#): > > I’m not opposed to that. I think the principle reason for the “any justification” approach is that, otherwise, they can just renact the law and say the right things into the record (assuming political support). Which, it seems, gives the court a overridable legislative veto. > > If true, she must have written the opinion before the hearing. I don’t recall seeing that justification in any opinion explaining rational basis review. In any case, I don’t think that signifies; I’m sure there are many cases in which a legislature wouldn’t pass legislation if they had to explain the real reasons they’re doing it out loud. I gather Tuesday’s hearing was a reconvened one and they had already argued most of the issues. Plus, it’s not like any of these arguments are new. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 6, 2014, 5:51pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/271 "2014-02-06T17:51:42Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I don’t recall seeing that justification in any opinion explaining rational basis review. In any case, I don’t think that signifies; I’m sure there are many cases in which a legislature wouldn’t pass legislation if they had to explain the real reasons they’re doing it out loud. I don’t know where I read it. Maybe it’s my own contribution to the field, but I don’t think so. It was in a footnote in some decision rejecting the fact that the claiming justification shoudn’t be considered becuase some legislator had something something to the contrary during the floor debate. The point was that, whatever could be drawn from the comments, courts accepted any justification becuase otherwise they could just reenact it and have that guy shut up. But, it wouldn’t need to be the “real reasons,” would it? You just need to include sufficient references to a legitimate reason. Take DOMA for example. You and I know that the only reason it was passed is becuase the (overwhelming bipartisan) majority of Congress and the president were hateful bigots blinded by rage. But, the idea that they should standardize the rules for federal marriage benefits was entirely rational (it was one of three perfectly rational approachs to the problem). If they just went back and reenacted it, and talked about administrative efficiency, it passes muster, right? (I understand that DOMA is an inapt example, becuase it’s really about disparate treatment of married couples by the federal government. But it’s a timely reference). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 6, 2014, 10:19pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/272 "2014-02-06T22:19:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, the court substitutes its determination of _constitutionality_ for that of the legislature. Consideration of whether the legislation is a good idea is entirely separate from consideration of whether it burdens a fundamental right or treats similarly situated people differently. But if we are talking about applying a rational basis standard, then it does not include a fundamental right and is permitted to treat similarly situated people differently. I was assuming, for the purposes of this discussion of rational basis, that you were urging a stronger type of rational basis review where it is currently applied: in matters not affecting fundamental rights. In that case, I dislike anything stronger that what is the current test (before this “with teeth” anomaly) because with no fundamental rights in play, the Court really has no reason to say that a law is unconstitutional unless it is simply irrational. Let’s try an analogy: three states enact tobacco purchase ages of 9, 19, and 99 respectively. Can we agree that no fundamental rights are in play in this analysis? (Or if you disagree, let’s assume that the case of Smith v. Jones, 999 U.S. 999 (2014) was just decided that said that all age based distinctions are 100% constitutional). We can all have different opinions on what the tobacco purchase age should be, but all 3 ages would survive the rational basis test on my understanding of it and the way it currently is. It doesn’t matter if State A passed the law because they are slaves to big tobacco and want 13 year olds getting hooked on it; if they say that it is to keep tobacco out of the hands of 6 year olds, then that is a rational basis and the law passes muster. Likewise if State C simply wanted to ban tobacco, the way they did it is rational. If the Court starts using statistics or studies about how this or that age is more appropriate, they are not doing constitutional analysis, but simply substituting their judgment for the legislature. Agree? If the Court starts talking about rights of certain age groups, protections of certain age groups, freedom to use tobacco, or freedom to make a living selling tobacco, then they are not talking about rational basis but are talking about heightened scrutiny under equal protection or due process. Agree? So, if we use rational basis to do any more than simply make sure that the law is not absolutely without any merit at all, we are either applying heightened scrutiny or vetoing the legislature. If you disagree, which I’m sure you do, what is the middle, permissible thing the court should be doing with the rational basis test? ---
**Author:** ![jasg](https://avatars.discourse-cdn.com/v4/letter/j/f0a364/32.png) [@jasg](https://boards.straightdope.com/u/jasg)\ **Post date:** [February 14, 2014, 11:51pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/273 "2014-02-14T23:51:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > In related news, a decision in [the pending Virginia case](http://www.afer.org/blog/marriage-equality-ruling-expected-soon-in-virginia/) could come down any day now. Well, it took [six days.](http://www.reuters.com/article/2014/02/14/us-usa-gaymarriage-virginia-idUSBREA1D05B20140214) Also in the news today was a USAToday [article](http://www.usatoday.com/story/news/politics/2014/02/14/attorneys-general-gay-marriage/5492785/) which says: > [@](#): > > **Attorneys general switching sides on gay marriage** > > Conservatives have bitterly accused them of shirking their sworn responsibility. But the AGs say that the legal case against gay marriage is crumbling and that it would be improper for them to argue positions they have concluded are clearly unconstitutional. > > Attorneys general in five states — Virginia, Pennsylvania, California, Illinois and, this week, Nevada — have declined to defend same-sex marriage bans against lawsuits filed by gay couples, while a sixth, in New Mexico, challenged longstanding legal interpretations that said such unions were impermissible there. The AGs are all Democrats. It fails to note that the Republican governor of Nevada is also [backing](http://www.washingtonpost.com/blogs/govbeat/wp/2014/02/14/three-hopeful-signs-for-proponents-of-gay-marriage-in-nevada/) his AG. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 17, 2014, 8:31pm UTC](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535/274 "2014-02-17T20:31:19Z")
I think that all of the suits are setting up an almost certain circuit split that will force the Supreme Court’s hand to finally decide the SSM constitutionality question. The standing problem will also be resolved as at least one AG in the 4th circuit (WV) will step up and challenge a ruling requiring SSM. (There’s probably also one in the 10th Circuit as well). Looks like Kennedy’s dance is winding down and his date is asking him to put out or get out. [Previous page](https://boards.straightdope.com/t/va-attorney-general-refuses-to-defend-gay-marriage-ban/679535.md?page=13)