In reply to pal_sch, #2662:OK, looking at the dissent now.
They quickly look at
Baker v. Nelson, a case which in essence ruled that there isn't a constitutional right to gay marriage. Specifically the Supreme Court refused to recognise any substantial federal question. The groups they were asked to review the case on were effectively the same due process and equal protection grounds as the current case. The only distinction allowed for in the dissent is that in the Californian case gay marriage was first allowed and then removed. This appears to be addressed at the broader questions 1 and 2 (and that addressed by the trial court judge), saying that they are invalid reasons to strike down the law under the
Baker precedent. There is no substantial discussion of
Baker on the other side since it was held not to apply in the initial Motion for Summary Judgment.
The dissent goes on to say that rational basis applies here, strongly dismissing any ideas that homosexuals are a suspect or quasi-suspect class, or that there is a fundamental right to gay marriage (while seeming to accept that there is such a right to marriage, although that could be my confusion over the language used).
They conclude that rational basis should be applied again, this time without any bite whatsoever. The background to rational basis is laid out in full, showing exactly how toothless the test is. There is a brief discussion of whether morality can be used as a basis, quoting Scalia's dissent in
Lawrence before admitting (using O'Connor's concurrence in the same case) that it can't be the sole basis.
There is then a lengthy discussion of the California Supreme Court ruling upholding Prop. 8 as part of a move to distance the case from
Romer. They suggest that
Romer was a broad and significant change in the relationship between the state and homosexual individuals. This compared to the state SC description of Prop. 8 as fairly narrow, only removing the official designation of marriage and leaving everything else intact. It's suggested that it's only the breadth of the law in question in
Romer that lead to it's being struck down, not the removing of existing rights.
They then uphold all the stupid arguments against gay marriage. Essentially, under this take on the rational basis test, just because a reason given doesn't match the facts doesn't mean it isn't a legitimate state interest.
Seriously, can we get rid of the word 'rational' here? It's being abused pretty heavily.
An actual quote;
...the standard only requires that the optimal parenting rational be based on "rational speculation" about married biological parents being the best for children. ... Considering "the question is at least debatable,"... the optimal parenting rational could conceivably be a legimiate governmental interest.
I've only cut out a reference to
Heller there. Everything after that is basically an explanation of why there is no real way to require the 'rational' basis of the law (even if it is post-hoc and utterly bullshit) is actually related to either the effect or the intent of the law. And that's game.
To my eyes this looks like a reasonable split for the Supreme Court. I could easily see the liberal justices, maybe with Kennedy, agreeing with the majority here. The dissent doesn't actually go as far as I'd expect Scalia to (after all, it sided with O'Connor over
Lawrence), but I could see it serving as the basis and shape of the conservative argument.
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Topic: Chill and Relaxed Progressive Irritation and Annoyance Thread (Read 854695 times)