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Is It Crazy To Call Californians Irrational?: The Weak Case Against Gay Marriage
· Wednesday, August 11, 2010
At first blush, the notion that there is no rational basis for California's ban on same-sex marriage, as U.S. District Chief Judge Vaughn Walker ruled last week, seems extreme. But the more you consider the arguments presented by the ban's supporters the less far-fetched Walker's conclusion looks.
Walker ruled that Proposition 8, the 2008 ballot initiative that excluded gay couples from the legal definition of marriage, violated the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." He deemed the case presented by the measure's supporters so weak that it failed even the "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class," such as race (although he also argued that gay marriage bans implicate both).
Proposition 8's defenders, Walker noted, emphasized "its consistency with the 'central purpose of marriage, in California and everywhere else, to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.'" Yet when Walker asked Charles Cooper, the attorney defending Proposition 8, how recognizing same-sex marriages would impair the asserted state interest in procreation, Cooper at first said it was "not the legally relevant question" and then essentially conceded the issue, saying, "Your honor, my answer is: I don't know. I don't know."
In their trial brief, Proposition 8's supporters promised to identify 23 -- count 'em -- negative consequences of "redefining marriage to encompass same-sex relationships." During the trial, however, they presented just one witness to substantiate this point -- David Blankenhorn of the Institute for American Values, who, in Walker's judgment, "provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate."
Blankenhorn conceded that children raised by adoptive parents fare at least as well as children raised by biological parents, that recognizing gay marriages would benefit gay couples and their children, and that such recognition would be "a victory for the worthy ideas of tolerance and inclusion." Although Blankenhorn nevertheless worried that giving gay couples the same legal status as straight couples might exacerbate the "deinstitutionalization" of marriage, he never explained why.
During his closing argument, Cooper returned to the theme that "responsible procreation is really at the heart of society's interest in regulating marriage." When Walker asked him to cite the evidence that had been presented during the trial to back up this claim, Cooper replied that "you don't have to have evidence of this point."
But you really do, especially because procreation, responsible or not, never has been a requirement for a marriage license. The government routinely recognizes marriages between people who have no intention of reproducing or who are physically unable to do so.
Walker concluded that "the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex." Because the "rational basis" test requires that discrimination be "rationally related" to "a legitimate government interest," that conclusion alone was enough to overturn Proposition 8.
Walker's reasoning is similar to that of the 1996 decision in which the Supreme Court ruled that Colorado's Amendment 2, a ballot initiative that prohibited state and local bans on discrimination against homosexuals, failed the "rational basis" test. Like the court in that case, Walker found the asserted reasons for the challenged law to be so weak that the true motivation had to be a moral judgment concerning homosexuality.
Seeing as Amendment 2 was ostensibly aimed at protecting property rights, freedom of association, and freedom of contract from bans on private discrimination -- as opposed to requiring official discrimination -- it had, if anything, a stronger basis than Proposition 8. But even if both cases were wrongly decided, one thing is clear: Opponents of gay marriage ultimately will lose the public policy debate if they can't do a better job of defending their position.
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adam
I think you summed it up pretty well. I really only read summaries of it and they were really rather strong arguments. There really doesn't seem to be a rational basis for the ban (and probably all of the others in the country as well).
Posted August 11, 2010 at 2:17:59 AM
Bruce
NEVER MIND that Walker is homosexual and that his ruling in this case is a conflict of interest and is therefore not binding and he himself should be removed from the bench for that reason. NEVER MIND that the foundation of our republic is strong families and local governments protected against an over-bearing and dictatorial federal government by the constitution and that progressives have worked for a century to destroy the family so as to transfer increasing power to a centralized elite. And NEVER MIND that the purpose of the Amendment was to protect CITIZEN rights to life, liberty and property, NOT to protect or endorse a life style choice. The FACT that many lawyers are STUPID is no excuse for allowing a travesty like this to stand.
Posted August 11, 2010 at 8:57:05 AM
Wayne
Those who have difficulty understanding how the opinion of one judge can override the votes of 7 million (mislead) California residents should know the words of James Madison, Father of the Constitution;"Measures are too often decided, not according to the rules of justice and the rights of the minor party,but by the superior force of an interested and overbearing majority."
Posted August 11, 2010 at 10:05:48 AM
CharlieEcho
From what I have read and heard of the case taken before this "judge", the plaintiffs (sic) presented a weak case believing "right" or "common sense" would prevail. Wrong. With the gay/liberal movement nothing should be taken for granted. Those who oppose such liberal thought must bring every weapon to the table.
I'd read an article, the name I can't recall, refering to the Roman Empire and the fact that groups "out of the norm" were allowed their own representation in governing. A poor example indeed. Rome was great as long as it was responsible. WE know, or those who know history, what happened to the Roman Empire.
Posted August 11, 2010 at 12:15:56 PM
Marcus
I am not a lawyer but I can think of no "rational" or reasonable and thus "legal" reason to keep old people alive once they become dependent on taxpayers for the medical interventions to maintain life. It is done because society considers it immoral to let a sick old person, possibly in pain, to lay on their bed at home waiting to die. Also, it is not rational to make "drug", pot, which you can grow at home naturally, illegal, and yet our irrational legislators did so. Why? And why don't judges strike down those laws as irrational? Aren't they saying by this law that American adults can't control themselves? Is it rational to conclude that we can't control ourselves with pot but we can control ourselves with alcohol and guns???
So, how far do you take the rational? How do we as citizens figure out what rational is when it is apparent that the "legal" system doesn't abide by their own rules for consideration? Which could be interpreted as "they don't have a clue". Who gets to say when is it OK to apply it to our legal system, note that, "our" legal system, not judge Walkers, or not apply it?? Sometimes it is important to go with the democratic majority who reflects the moral philosophy of a culture versus a cold and calculating product of a law school. I contend it is "unjust" for a justice to impose his or her "rationale" on the rest of us. Some things in society are based on feelings which are based on belief systems, all of which would more than likely fail a so-called rational basis test. We are people, not characters like Mr. Spock. Walker's problem, just like all the ones like him hide behind rationality like Spock. The real world is messy and irrational. Who are they to impose their "beliefs" on us? And yes, rational thinking as applied to the human condition has to be a belief not a science because humans are not machines and therefore can not fit a rational model, as much as the Walkers of the world would like us to. But where does it end? How rational are we to become? Some of the Nazi solutions were "rational", but from a humane point of view they were cold and disconnected from reality, even to the point of being considered evil.
If the government wants to issue marriage licenses to homosexuals, fine, but homosexuals have no business trying to force churches to recognize their unions. Nor should the judicial system tolerate lawsuits brought about by homosexual couples against a church or clergy.
Keep the government and their misguided judges away from our churches and homes. It would seem that the government is attempting to be a modern day church with soldiers and guns. Their problem is that they don't have moral code and rationality is a poor substitute.
Posted August 11, 2010 at 12:27:59 PM
MBI
"If the government wants to issue marriage licenses to homosexuals, fine, but homosexuals have no business trying to force churches to recognize their unions. Nor should the judicial system tolerate lawsuits brought about by homosexual couples against a church or clergy."
Who brought that into it? I'm pretty sure that hasn't happened, and if it has, I'd support your position on it. However, I don't think anyone is forcing or can force a church to recognize a union it doesn't want to.
Posted August 11, 2010 at 5:43:13 PM
_garth
James Madison may have said that but that doesn't make it right in every case - there are many cases where asserting the supposed "right's" of the minority discriminates against the majority, as in this. He also said "I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations." US judges are out of control and are using their power to
Whether the arguments put forward were brilliant or not is largely irrelevant. Democracy is rule by majority - it's how the system works. If you don't like it look for a dictatorship or as James Madison said "A pure democracy is a society consisting of a small number of citizens, who assemble and administer the government in person." which sounds a lot more like the misery that Lenin set up than what the US constitution implies. The legal profession, surely, is there to uphold the laws that have been ratified through parliament, not to override them and make their own.
Posted August 11, 2010 at 7:44:19 PM
JJStryder
How about historical precedence? We seem to have concluded that ending Roe v Wade is impossible because of years of legal precedence.
I argue society, historical record, religious beliefs and our culture have concluded that marriage is between a man and a woman. For many years longer than Roe v Wade.
Posted August 12, 2010 at 11:09:04 AM
Bruce R Pierce
MBI,
Thank you for your support, when/if this becomes Law ALL organizations will be required to recognise those Marriages by the very fact it will be Law. Please publish your email so you can receive valuable information that needs to be distributed to help fight this.
Posted August 12, 2010 at 4:11:13 PM