Perhaps he has something that he believes is self-evident, and you are being deliberately obtuse. However, he is reluctant to write it out because he feels we will do whatever it takes to twist his words to try to make him look either ridiculous or bigoted.
Or something like that.
As Bricker notes, Lawrence doesn’t seem to have had that effect yet, and the Justices certainly made no claim that they were doing that. The cases are also different in some important respects. The Lawrence decision was made on due process grounds, for instance, rather than equal protection. Lawrence also involved criminal punishment for private behavior, rather than Federal limits on the reach of state laws.
Rational basis is an extremely permissive standard. I think the court Bricker cites basically got it right:
*Rational-basis review is highly deferential to the legislature or, in this case, to the electorate that directly adopted § 29 by the initiative process. “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational-basis for the classification.” … Thus, the classification created by § 29 and other laws defining marriage as the union between one man and one woman is afforded a “strong presumption of validity.”… The Equal Protection Clause “is not a license for courts to judge the wisdom, fairness, or logic of [the voters’] choices.”
…
Our rational-basis review begins with an historical fact — the institution of marriage has always been, in our federal system, the predominant concern of state government. (…) a State “has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” (…) In this constitutional environment, rational-basis review must be particularly deferential.
…
The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” (…) Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.”
…
The district court rejected the State’s justification as being “at once too broad and too narrow.” (…) But under rational-basis review, “Even if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required.”
*
(Bolding mine)
Again, though, I think heightened scrutiny applies.
Note also, just to clarify, that the language above does not refer to DOMA. This is the language that court was talking about:
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.
Man, I hate those twenty-five year longitudinal peer reviewed anecdotal studies published in ridiculous journals like Pediatrics… Got the cite wrong, I admit, was Gartrell and Bos 2010.
On the other hand, DOMA is infallible.
No because marriage as an intitution dedicated to breeding and child-rearing is and has always been arbitrary. The example I gave was mixed marriages that were thought to intrude upon the sanctity of keeping the races pure. Loving v. Virginia was 1967 and the miscregenation laws were still on the books until 2000 in Alabama. Until 2006, 12 year olds could get married in Kansas. Picture that, a girl (not even a young lady) can’t drink at her own wedding, sign the rental agreement for the reception or even drive to the church but she can get married while two adult homosexuals that have been in a committed relationship longer than she’s been alive cannot. Since she is (we assume) of breeding stock, the Kansas example doesn’t counter your support of DOMA, but 12 year-olds getting married? How is that not an arbitrary marriage law? How is a 13 year old supposed to provide a stable environment for a child even with her husband. I guess when they are grandparents at 26 they can help out with their years of experience.
Allowances are made for two heteros to get married even if they cannot have children. And that’s not an unexpected outcome. When I got married in California, a marriage was void if one of the parties could not have children because one perpose of marriage was (according to the state) to have children and a statute was in place validating the marriage if the sterile party told the other party that they could not have children. That is the legislature looking at a law, recognizing cases where there is a challenge to the State’s interest (wanting to get married but cannot have children) and the State making an exception for those cases. To not make a similar exception for people (homosexuals) in the same situation is arbitrary.
You claim society has dictated that divorce be easier but doesn’t state interest overrule societal wants (e.g. Civil rights in the South in the 1960s)? If the state truly had an interest in the nuclear family re: child-rearing, it would require the court to investigate the impact a divorce would have on a child. Instead it is one parent filing, the other agreeing, the mom getting custody and the dad paying support based on some formula and seeing the kid every other weekend and 2 weeks over the summer. So we have a contradiction in that having a single-household nuclear family isn’t really that important for raising a kid. The alternative is that it is better for a child to not be in a household where the parents hate each other but either way, it is a direct contradiction of the assumption that there are beneficial ways to raise a child.
So in either paragraph we have a contradiction with DOMA.
In paragraph 1 we set up marriage to promote breeding which naturally excludes homosexuals but then states set up arbitrary rules to allow some who can’t breed to get married. If the purpose of DOMA is to set up a situation where children can be bred, then it should define marriages as between a fertile man and a fertile woman.
In paragraph 2 we set up an ideal situation where children can be raised in a wholesome environment* (so now we need to allow for adoption re: child-rearing and not just shooting a baby out of a womb) but that in some cases that this may involve splitting a child between two homes which DOMA has arbitrarily decided is better than being raised with in one home with two parents of the same sex. Or to put it another way but just as arbitrary, I could marry my girlfriend and she help me raise my child from a previous marriage together with the love and support of a hetero marriage-consecrated household (at parent teacher conferences she is “my wife”) but I could not do the same with a gay lover.
So DOMA in its purported secular purpose is either to inclusive or too exclusive. It either includes people who cannot fulfill their mission to make more babies or it excludes homosexual couples that can fulfill their role in providing a loving nuturing family environment.
Not all that relevant, since the House’s Bipartisan Legal Advisory Group intervened to defend the law subsequent to the 28 U.S.C. § 530D notice.
In other words, those arguments are still being made on the law’s behalf. Thhe failure of the DOJ to make them does not mean they are conceded.
DOMA arigata, Mister Rutabega.
I gather he wants to get the last word.
In any case, my question of how gay marriage affects birth rates remains unaddressed. If DOMA was a manifestation of the state’s belief that children are best raised in mixed-sex households (how established this belief is, or even if it exists beyond the necessary legal fiction to pass DOMA and similar legislation is another matter), it’s unclear to me how restricting gay marriage accomplishes this. It’s like saying the state has an interest in promoting the growing of corn, therefore must regulate the production of hammers.
Duh! It’s obvious. Putting two hammers together cannot make a stalk of corn.
Yet even the House’s Bipartisan Legal Advisory Group didn’t argue that the familial concerns were justification for the a rational basis to apply.
They have retreated, mostly due to the ugly religious based reasons that the body themselves used to justify the law in the first place.
The arguments themselves put their case at risk by justifying a higher level of scrutiny for the class.
As has happened in other districts.
[
](http://thinkprogress.org/wp-content/uploads/2012/02/doma-opinion.pdf?mobile=nc)
What I find interesting in this discussion is the repeated assertion that the government has an interest in promoting hetero marriage as the best way to produce and raise children, yet I have never, in my entire life, seen a government sponsored advertisement, or PSA, or pamphlet or anything promoting marriage. Admittedly I’m Canadian and not a US resident or citizen, so maybe that does occur down there but that seems unlikely to me. So where is the government promoting marriage anyway?
One could argue that creating laws around marriage and all the benefits and obligations thereof denotes a promotion of sorts, but by that logic creating laws around the legalisation of alcohol does the same. Does anyone think the government is trying to get you to drink? I mean, I’d be legally within my rights to go outside wearing parachute pants and a giant sombrero, but I don’t think the government’s protecting me from harm if I do so constitutes promotion.
Let’s be honest about this: people have been pairing and grouping up since the beginning of our species. It’s a natural human urge to create bonds with others and marriage is just a formalised recognition of those bonds. Marriage existed long before any current government and will exist long after all current governments are gone. Any state’s recognition of marriage and legal codification is just an acceptance of the fact that people will continue to form these bonds and that the burdens placed on them in any future disputes can be safely removed by legalising the bond and giving the partners therein control over their fates together.
So whenever anyone raises any kind of objection to same-sex marriage over the whole child-rearing thing, there are honestly only two completely true and straightforward counterarguments needed:
One last thing - Canada has had legalised same-sex marriage for almost 7 years now, and has had literally no negative repercussions to our society in that time that can be linked to same-sex marriage. Same with the other countries where it is legal. If the default assumption for any free and liberal society is that I should be allowed to do something unless the state can provide a compelling reason to prevent me from doing so, what’s the argument against same-sex marriage, keeping in mind that it has demonstrated no negative effect elsewhere?
That’s not a correct statement of the default position by law in the United States.
The default position actually is that the state need only provide a reason that is rationally related to a legitimate goal.
If the state’s law implicates certain protected groups, then the state must supply a compelling reason, and with other groups, it must provide a reason that is narrowly tailored to achieve its desired result.
These tests are known respectively as “rational basis,” “intermediate scrutiny,” and “strict scrutiny.”
I suppose a reasonable question is to ask what DOMA’s legitimate goal is and how it accomplishes (or might accomplish) such.
It doesn’t have to accomplish the goal. It only has to be related to the goal.
Survivor benefits could be contracted privately and tax benefits are exactly my point. Why should married people of any definition get a tax break over single people?
Bricker is correct; the law only has to be rationally related to that goal.
So, Congress can just say something like, “Our goal is to protect the autonomy of States in determining what constitutes marriage, and DOMA is related to that because it prevents States from having to recognize same-sex marriages performed outside their boundaries.”
Well almost, Judges do overturn non sequitur laws, just not bad laws based on rational.
As I claimed above the overtone of DOMA will be the legislators own fault, by arguing for the law in a way that makes it pretty difficult for any judge who has to question the suspect classification of homosexuality.
Because:
The first district is just going off of precedent, there are cases pending in several districts that do not have precedent for homosexual’s suspect class.
Obviously the 9th bumped it up, but it was a Bush appointee who did.
I should note that the 9ths precedence on subject class for homosexuals was based on “High Tech Gays” which relied on “Bowers v. Hardwick” which was invalidated in 2003 by “Lawrence v. Texas”
Mostly to clarify to Bricker where I was going with the L v.Tx thing.
Okay, so how is it related to the goal? Or is it just as shy guy describes - the Federal government allowing an exception to Full Faith and Credit, which I figure lets the states pass their own laws restricting same-sex marriage for no good reason.
Thought I might throw our here that, speaking genetically, equal numbers of productive females and males maximizes genetic diversity/minimizes inbreeding.
This says absolutely nothing about who should raise them once conceived, nor is it a particular issue in the modern world. It does suggest reasons for the taboo developing in small isolated populations, possibly similar to distaste for incest.
[QUOTE=hoopified]
I don’t know what to tell you then. The state’s reason is to provide the best invironment for children. That’s a reason you may disagree with, but it’s a reason nonetheless. You may thinnk it a whim, but lots of reasonable people think otherwise.
[/quote]
Except, as has been pointed, there is no evidence at all that a gay couple is any less capable than a straight couple at raising children. In fact, all the evidence on the subject indicates that there is absolutely no difference in outcomes between children raised in hetero households, and children raised in homo households.
Now, “It provides the best environment for children,” is arguably a secular argument. But when that argument has been thoroughly demonstrated to be false, one has to wonder why so many people cling to it so fiercely? It leads, naturally enough, to suspicions that the argument in question is not the actual reason for opposition to ssm.
Yes, not being actively discriminated against by my own government would, indeed, make me feel much better. I’m not sure why that alone is not reason enough to support gay marriage. I’m also not clear why you’re so dismissive of fairness. Surely, the idea that the law should treat all of its subjects the same is both laudable, to say nothing of foundational to our national identity. I’m not clear how you think ssm does not work in furtherance of a more equitable society. Surely, you cannot be claiming that society is more fair when it has laws specifically targeting a subset of its citizens and singling them out for different, and disfavorable, treatment?
Shifting the goalposts: how does banning homosexual couples from having their marriage recognised (prevalence of out homosexuals in population under 16% even in San Francisco) redress tax cuts for heterosexual marriage?