[QUOTE=DMC]
The problem is that without “bite”, it’s lower than just low. I’m having a hard time coming up with anything that might come before the courts that couldn’t be justified either for or against using the rational basis test. The problem to me is that any court of any persuasion can make any damned argument they want, and it can be defensible (albeit sometimes with the roll of the eyes) if that’s the test we use. Another problem is narrowing or widening the focus of the issue to reach the conclusion a judge has already predetermined. If you want to find for same-sex marriage, just argue that marriage is a fundamental right, which then elevates you up to strict scrutiny. If you want to find against it, narrow the argument to only gay marriage, and claim that it’s not a fundamental right, by using a definition based on a bizarre interpretation of an earlier decision, thus dropping it down to the rational basis level.
It’s basically bullshit no matter which way a court decides such cases, but the difference between us is that in cases where it can be decided either way, I’m going to lean towards more equality, not less. In other words, I’d give the rational basis test some teeth, where the state’s interest is weighed against the individual’s interest. As an alternative, I’d start with a top down approach in cases that are handling individual freedoms, where we start with the strict scrutiny test unless there is a compelling reason to lower the bar.
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Bunch of issues conflated here.
First, it’s not the court that determines that the law has a rational basis, it’s the legislature. What the court does, is review the legislature’s alleged rational basis and agree that, yeah, they did have a rational basis for passing that law. It doesn’t have to be the best one, it doesn’t have to even be a good one, just one that ties the law they did pass to a legitimate function of government. If the state chooses to decide that no person who has ever engaged in gay sex is eligible to serve on a police force, and they have the right to decide the qualifications for police, and specify in their legislatives findings some remotely plausible reason why engaging in gay sex and in police work are incompatible, it’s not for the courts to call that discriminatory; it’s a rational basis. A dumb one, in my opinion and nearly everyone else’s here, but it passes the test.
It is possible to fail the “rational basis” test, though it takes some doing. As I pointed out above, the finding in Romer v. Evans was that Amendment II to the Colorado State Constitution, essentially prohibiting the state and any of its political subdivisions from entertaining any claim of discrimination against gay people, failed the test.
For a fundamental right, the bar is raised. A fundamental right can be violated only when the law is “closely related to a compelling government interest.” (Those are terms of legal art.)
Marriage has been found to be a fundamental right, in Loving v Virginia. Only SCOTUS can overrule that finding. However, the courts have declined to find that denying gay couples the right to marry violates their equal protection under the law. In the instant case, the NYCoA reviewed the jurisprudence to date, found that SCOTUS had declined to find an equal protection violation in the case Bricker cited, examined New York law and failed to find in New York’s Constitution a protection more stringent than the Federal equal protection clause, and determined that they were bound by the SCOTUS precedent.
There are any number of ways to argue to the contrary, but a court honoring binding precedent in the absence of a clear argument why it should be distinguished, is doing its job properly. It’s something like pitting a city clerk for not issuing a marriage license in violation of state law to see it otherwise.
And, as noted, this puts the onus on the New York State Legislature to change the law.
