Important Prop. 8 Ruling Today

[LA Ute]

That's actually exactly what the majority said: there is no rational (and legal) reason for Proposition 8.

IIRC from my brief brushes with Con law, a rational basis doesn't have to be well-articulated or defensible on its own merits. It just has to be based on reason, not well-reasoned. I.e., it's a very low bar. I haven't read the opinion (sorry); does it say Prop 8 doesn't even clear that bar? If so, wow.

[All-American]

IIRC from my brief brushes with Con law, a rational basis doesn't have to be well-articulated or defensible on its own merits. It just has to be based on reason, not well-reasoned. I.e., it's a very low bar. I haven't read the opinion (sorry); does it say Prop 8 doesn't even clear that bar? If so, wow.

Exactly right. As the majority said:

Ordinarily, "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relationship to some legitimate end." Romer, 517 U.S. at 631. Such was the case in Romer, and it is the case here as well.

According to the majority, Prop 8 "serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California," and therefore fails the rational basis test.

[LA Ute]

Exactly right. As the majority said:

According to the majority, Prop 8 "serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California," and therefore fails the rational basis test.

Hmmm. Well, to my non-Constitutional scholar mind, that looks like a holding that won't stand up. Among other things the justices would be concerned about the precedent.

[UtahDan]

That's actually exactly what the majority said: there is no rational (and legal) reason for Proposition 8.

What do you say it is?

[Jeff Lebowski]

I think they are excluding religious belief from their definition of rational. I respect a person holding a religious belief but I agree that it should not form the sole basis for any law. Read that last sentence again people and note my use of the word sole.

I think you quoted the wrong post.

[UtahDan]

:?

I think you quoted the wrong post.

Yup. Tapatalk is my nemesis. I'll fix it when I get to my laptop.

EDIT: I fixed it but that is really weird. I can't reconstruct how that happened at all.

[LA Ute]

What do you say it is?

You're highlighting my point (which is admittedly not based on any study or analysis, just my basic recollections of equal protection analysis). The rational basis doesn't have to be strong or well-reasoned, it just has to be based on reason. So, just to pick a random example, if one basis for Prop 8 is the conclusion that traditional marriage (one man, one woman) strengthens society, that ought to be enough. You might not agree with the conclusion, but that doesn't matter (unless I am misremembering Con law). That's why I'm a bit surprised to hear the 9th Circuit used a rational basis test.

I'll read the opinion before I engage in any more curbside analysis.

[UtahDan]

You're highlighting my point (which is admittedly not based on any study or analysis, just my basic recollections of equal protection analysis). The rational basis doesn't have to be strong or well-reasoned, it just has to be based on reason. So, just to pick a random example, if one basis for Prop 8 is the conclusion that traditional marriage (one man, one woman) strengthens society, that ought to be enough. You might not agree with the conclusion, but that doesn't matter (unless I am misremembering Con law). That's why I'm a bit surprised to hear the 9th Circuit used a rational basis test.

I'll read the opinion before I engage in any more curbside analysis.

But aren't you assuming away the critical question, whether it is based on reason? If I assert that the rational basis for prop 8 is that it encourages interstate commerce, that it clearly something the government has a legitimate interest in, but how is the law reasonably related to promoting interstate commerce? I have to do more than just say it is.

[LA Ute]

But aren't you assuming away the critical question, whether it is based on reason? If I assert that the rational basis for prop 8 is that it encourages interstate commerce, that it clearly something the government has a legitimate interest in, but how is the law reasonably related to promoting interstate commerce? I have to do more than just say it is.

I think what you are hinting at is the religious underpinnings of much (most, probably) of the arguments advanced by Yes on 8. Just because those underpinnings are present doesn't mean the argument can't also be rational. Again, in this context "rational" doesn't mean "sound" or "well thought-out," at least according to my understanding of rational basis analysis. So under that test, a legislative body or the electorate in a ballot initiative can conclude, based on information available to them, that traditional marriage is an ideal that makes for stronger families and better circumstances for child-rearing, and ought to be the only such relationship that we call "marriage." Whether a court agrees with that conclusion or even with the reasoning that gave rise to it is supposed to be unimportant, because there is reasoning underlying the conclusion.

My point is that rational basis analysis seems like a dumb way to try to find the
law unconstitutional. It would have been better for the 9th Circuit to find a way to conclude that sexual orientation is a suspect class, and thus subject Prop 8 to strict scrutiny analysis. Maybe the Supreme Court would buy that.

[All-American]

But aren't you assuming away the critical question, whether it is based on reason? If I assert that the rational basis for prop 8 is that it encourages interstate commerce, that it clearly something the government has a legitimate interest in, but how is the law reasonably related to promoting interstate commerce? I have to do more than just say it is.

I actually thought the dissent did a decent job of stating the reason behind Prop 8: to support and promote marriage as a pedagogical institution. A rational person can think that in general, the ideal circumstances for rearing a child is in a home with his biological father and mother in a committed and stable relationship. Defining marriage as being between any two people shifts the focus from marriage as a fundamentally pedagogical institution to one intended to serve the needs of the marriage partners.

The obvious rebuttal to that point is that Prop 8 defines marriage as between a man and a woman, not a father and a mother, or even a fertile man and a fertile woman. Were the proposition subjected to an elevated level of judicial scrutiny, it would be much less likely to survive it. It would not surprise me at all if SCOTUS determined that Prop 8 DOES survive a rational basis review, then remanded for consideration of scrutiny questions which the 9th Circuit mostly punted, only to see it come back before them on the question of whether Prop 8 can survive strict (or even intermediate) scrutiny.

[UtahDan]

I think what you are hinting at is the religious underpinnings of much (most, probably) of the arguments advanced by Yes on 8. Just because those underpinnings are present doesn't mean the argument can't also be rational. Again, in this context "rational" doesn't mean "sound" or "well thought-out," at least according to my understanding of rational basis analysis. So under that test, a legislative body or the electorate in a ballot initiative can conclude, based on information available to them, that traditional marriage is an ideal that makes for stronger families and better circumstances for child-rearing, and ought to be the only such relationship that we call "marriage." Whether a court agrees with that conclusion or even with the reasoning that gave rise to it is supposed to be unimportant, because there is reasoning underlying the conclusion.

My point is that rational basis analysis seems like a dumb way to try to find the
law unconstitutional. It would have been better for the 9th Circuit to find a way to conclude that sexual orientation is a suspect class, and thus subject Prop 8 to strict scrutiny analysis. Maybe the Supreme Court would buy that.

I may need to review my understanding of things because that doesn't seem correct to me. If that is right, why not just assert that preventing gay marriage reduces traffic accidents and promotes the prompt and full payment of state income taxes?

[UtahDan]

I actually thought the dissent did a decent job of stating the reason behind Prop 8: to support and promote marriage as a pedagogical institution. A rational person can think that in general, the ideal circumstances for rearing a child is in a home with his biological father and mother in a committed and stable relationship. Defining marriage as being between any two people shifts the focus from marriage as a fundamentally pedagogical institution to one intended to serve the needs of the marriage partners.

The obvious rebuttal to that point is that Prop 8 defines marriage as between a man and a woman, not a father and a mother, or even a fertile man and a fertile woman. Were the proposition subjected to an elevated level of judicial scrutiny, it would be much less likely to survive it. It would not surprise me at all if SCOTUS determined that Prop 8 DOES survive a rational basis review, then remanded for consideration of scrutiny questions which the 9th Circuit mostly punted, only to see it come back before them on the question of whether Prop 8 can survive strict (or even intermediate) scrutiny.

Engage me on what I just said to LA. I assert the rational basis for prop 8 is that it promotes more attractive architecture in government buildings. Does that pass a rational basis test?

[All-American]

I think what you are hinting at is the religious underpinnings of much (most, probably) of the arguments advanced by Yes on 8. Just because those underpinnings are present doesn't mean the argument can't also be rational. Again, in this context "rational" doesn't mean "sound" or "well thought-out," at least according to my understanding of rational basis analysis. So under that test, a legislative body or the electorate in a ballot initiative can conclude, based on information available to them, that traditional marriage is an ideal that makes for stronger families and better circumstances for child-rearing, and ought to be the only such relationship that we call "marriage." Whether a court agrees with that conclusion or even with the reasoning that gave rise to it is supposed to be unimportant, because there is reasoning underlying the conclusion.

My point is that rational basis analysis seems like a dumb way to try to find the law unconstitutional. It would have been better for the 9th Circuit to find a way to conclude that sexual orientation is a suspect class, and thus subject Prop 8 to strict scrutiny analysis. Maybe the Supreme Court would buy that.

It's a surprise to me. I thought that they'd go the route of Judge Walker in the District Court, who said that he thought that strict scrutiny was appropriate (but that the law wouldn't pass a rational basis review anyway).

My guess is that this was a punt to avoid the issue of whether gays and lesbians are a "suspect class." If so, I'm a little surprised nobody has thought it worth the effort to suggest that Prop. 8 is a gender discrimination case. It's well established that a law which discriminates on the basis of gender is subject to intermediate scrutiny ("furthers an important government interest in a way that is substantially related to that interest"). Arguably, the law discriminates on the basis of gender, not sexual orientation: women can't marry women, and men can't marry men. I suppose that's a position with which neither are happy, though.

[All-American]

Engage me on what I just said to LA. I assert the rational basis for prop 8 is that it promotes more attractive architecture in government buildings. Does that pass a rational basis test?

No. I suspect that nobody would rationally think that not allowing gays to marry would result in less attractive architecture. I DO think somebody could rationally believe that recognizing marriage as a union between a man and a woman could make for a more stable circumstance in which to raise children. I also think somebody could make a very compelling argument that recognizing marriage as a union between a man and a woman would have no more of an effect in creating a stable circumstance in which to raise children than it would on government architecture. The test which the 9th Circuit gave, however, is supposed to acknowledge only the former point, and to give no credence to the latter.

[LA Ute]

I may need to review my understanding of things because that doesn't seem correct to me. If that is right, why not just assert that preventing gay marriage reduces traffic accidents and promotes the prompt and full payment of state income taxes?

I have to get on with preparing this week's Seminary lessons, so will now resort to Wikipedia. Despite the source, this does seem correct to me:

The rational basis review tests whether a governmental action is a reasonable means to an end that may be legitimately pursued by the government. This test requires that the governmental action be “rationally related” to a “legitimate” government interest. Under this standard of review, the “legitimate interest” does not have to be the government’s actual interest. Rather, if the court can merely hypothesize a “legitimate” interest served by the challenged action, it will withstand the rational basis review....

To understand the concept of rational basis review, it is easier to understand what it is not. Rational basis review is not intelligent basis review; the legislature is merely required to be rational, not smart. A court applying rational basis review will virtually always uphold a challenged law unless every proffered justification for it is a grossly illogical non sequitur (or even worse, a word salad). In 2008, Justice John Paul Stevens reaffirmed the lenient nature of rational basis review in a concurring opinion: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"

I'm not arguing with you about Prop 8, just puzzled about why the 9th Circuit would rely on rational basis analysis, assuming that's actually what they did.