Rejecting the due process and equal protection arguments for heightened scrutiny, the New York Court of Appeals in its important decision last week applied rational basis review to the exclusion of gay couples from marriage. This should have been an easy route to denying the plaintiffs’ claims.
As ordinarily applied, rational basis is a very forgiving standard. The law must be (1) rationally related to (2) a legitimate end of the state. The law need not be very wise or very good to survive. As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy.
The New York court offered two rationales to meet this undemanding standard, both of which had to do with children.
“First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.” (p. 5) Children need permanence and stability in their lives. Yet the heterosexual relationships that produce them, said the court, “are all too often casual or temporary.” Homosexual couples do not become parents by “accident or impulse”; they must plan ahead and obtain children through adoption, artificial insemination, or some other “technological marvels.” Unstable relationships among heterosexuals therefore “present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”
Note the irony of this argument. For decades, homosexual life has been medicalized and pathologized by doctors, sexologists, psychiatrists, and politicians. Only 33 years ago, homosexual orientation was still officially a “disorder.” Gays, especially gay men, were denounced as hopelessly promiscuous, unstable, histrionic, and self-absorbed. Above all, this medico-political consensus held, homosexuals were dangerous to children and should be kept away from them. From the outset of the gay-marriage movement, a vocal opposition argued that the supposedly innate instability of homosexual relationships disqualified them from marriage.
Now, in the most important judicial decision yet rejecting a claim for gay marriage, we are told that gay couples may be kept from marriage not because they are unstable, but because heterosexual couples are unstable. Implicit in this view is that gay couples don’t have as large a need for the “inducement” to “make a solemn, long-term commitment to each other.” (p. 6) Implicit also is that gay couples are likely to plan more responsibly for the upbringing of their children. We thus have less reason to worry about the children gay couples are raising. Is the New York legislature listening?
The court is not saying that gay couples are more stable than heterosexual ones. It is saying that the social cost of heterosexual instability is much greater because of the toll it takes on children. And this much seems right. Sexual irresponsibility among heterosexuals imposes huge costs on our society. One-third of children are now born out-of-wedlock. Unwanted pregnancies lead to abortions. Unwanted and uncared-for children are more prone to violence, crime, drug use, ill-health, and so on.
What the New York court has done, then, is give us a very good reason why heterosexual couples should be permitted to marry. Their children badly need them to have the “inducement” marriage provides for the formation of long-term commitments. Otherwise, heterosexuals are too likely to abandon their responsibilities. There is no doubt the state has a “legitimate interest” in the institution we call marriage.
But how is the exclusion of gay couples “rationally related” to this legitimate interest? How does excluding them and their children from the stabilizing influence of marriage help families headed by heterosexuals? How does denying marriage to gay families make heterosexual ones more stable, long-term, and committed? The anti-gay-marriage movement has been trying for more than a decade now to answer these questions, to offer a believable theory of harm.
Whether you think anti-gay-marriage activists have done so convincingly is beside my point here. The point is that the New York court never even tries to answer these questions. The court simply has no explanation, rational or otherwise, for why heterosexual happiness in marriage depends on homosexual exclusion from it. You could come up with such a tale, but the New York court does not do so. The omission is striking.
The New York court offered a second rational basis for excluding gay couples from marriage. “The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” (p. 6) In response to social-science studies cited by the plaintiffs concluding that there are no differences between same-sex and opposite-sex couples in raising children, the court argued that the studies did not conclusively establish that the legislature was irrational to prefer heterosexual parents.
I agree with the court that the social-science studies on parenting, to date, do not establish conclusively that children do as well in same-sex households as in opposite-sex ones. The day may come when it would indeed be irrational to doubt this. We’re not there yet.
But once again the key question left unanswered by the court is, how does the exclusion of gay couples from marriage rationally advance the putative preference for heterosexual couples in child-raising? If we were faced with a choice between awarding a child either to a heterosexual or homosexual couple then, all else being equal, it would be rational for the legislature to prefer the former, given the present state of our knowledge. A policy that gave a preference in such cases to heterosexual parents would rationally promote the state’s interests.
But that is not what’s at stake in the question of whether gay couples should be able to marry. If the state could rationally claim that gay couples are incompetent to raise children, that would be one thing. Neither New York nor any other state takes that position, since all states permit gay people to raise children (some, with restrictions and qualifications). In New York, it is possible for a same-sex couple to adopt a child, but not to protect their joint responsibility for that child with marriage. New York guarantees these children will be raised outside of marriage. You could, I think, come up with some explanation for how excluding gay couples promotes what the state regards as the optimal familial arrangement, but the New York court’s analysis of this point is missing.
Let me be clear: I am not saying that existing marriage laws can’t satisfy rational basis review. It would be surprising if they couldn’t satisfy it, notwithstanding the conclusion of the majority of the Massachusetts high court in Goodridge. In fact, the best example of the application of rational basis to uphold the exclusion of gays from marriage is still Justice Cordy’s dissent in that case. His opinion is at once respectful of homosexuals’ claims, temperate in tone, closely reasoned, and a model of the kind of judicial humility associated with the test. By contrast, the New York decision is remarkably thin.
UPDATE: A number of the comments seem focused on filling in arguments the majority could have made on rational basis review (e.g., that marriage includes those couples, and only those couples, that present the problem the state identifies). I have no quarrel with these efforts. The point of the post, however, is that the New York court surprisingly omits these sorts of easy steps in the analysis. It identifies the legitimate end and then stops.
It's worth asking why the court's argument is incomplete. I can only speculate, but I'm guessing it's because the court is reluctant to flesh out in too much detail a very narrow normative vision of marriage that hardly anyone -- outside a few doctrinaire anti-gay-marriage activists -- seems to believe. In order to defend traditional marriage using these types of arguments we have to diminish it as an institution and to demean many existing marriages. That's not a legal problem for judges applying rational-basis review, but it is a cultural problem for anti-gay-marriage activists and for judges who want to be seen as making persuasive arguments, not just minimally rational ones.
Related Posts (on one page):
- The hardest day of the cruelest month:
- Washington High Court Upholds Exclusion of Gay Couples From Marriage:
- The Road to Gay Marriage After New York:
- Is it rational to exclude gay couples from marriage?
- The New York Marriage Decision and Equal Protection:
- The New York Marriage Decision, Due Process, and Defining Fundamental Rights:
- New York High Court Rejects Gay Marriage Claim:
I'm not sure I understand your point entirely. The Court plausibly (if not necessarily entirely convincingly -- but that wasn't required) identified a problem with heterosexual procreation that could be ameliorated by heterosexual marriage, and more specifically with the extension of benefits associated with (and encouraging) heterosexual marriage.
How would extending the same benefits to gay couples hurt heterosexuals? Maybe not at all (except that extending benefits may well cost money), but how would extending similar benefits to platonic friends, siblings, elderly parents and their children, etc. hurt heterosexual couples?
Assuming the rationality of the first ground for heterosexual-only marriage -- i.e. that heterosexual couplings, unlike gay couplings, frequently lead to accidental or otherwise problematic pregnancies -- why does the court have to explain why the solution to the purported problem doesn't apply beyond the purportedly problematic group?
My inference -- the "rational relation" is that while there is a reason to have state regulation of marriage in the heterosexual context (as a remedy against the high cost of heterosexual misconduct), there is no such reason in the homosexual context, so there's no reason to have state regulation of homosexual marriage. I think not having needlessly broad remedial structures is rational enough for rational basis. I mean, this is rational basis, not some other standard treating homosexuality as a specially protected class. If we had a licensing regime that targeted one particular class (say, accounting firms), and didn't target others (e.g. greengrocers), on the grounds that harms flowing from accountancy misdeeds were likely to be particularly great, I don't think we'd uphold a challenge that greengrocers should also receive licensing and validation on rational basis grounds.
That said --
I would agree with this. In fact, I would go further and say that all of the opinions on this subject I have so far read, with the possible exception of the dissent you mention, have been appallingly bad. On both sides. Somewhat like with abortion decisions, I think the associated public controversy must rob judges of their ability to reason through the issue dispassionately.
"Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest." (emphasis added)
Here's what the US Supreme Court said in Schweiker v. Wilson, 450 U.S. 221, 230 (1981):
"At the minimum level, this Court consistently has required that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives." (emphasis added)
And, here's what the US Supreme Court said in Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), a case specifically cited by the Massachusetts Supreme Judicial Court in striking down a ban on gay marriage:
"The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." (emphasis added)
Thus, to pass rational basis review, you must show not that giving benefits for heterosexual marriage helps children, but you must show denying benefits for gay marriage helps children.
I have yet to see even anecdotal evidence of even one child who was helped by banning gay marriage.
And, I've been asking for a while. To see my cached post from two years ago on the ACLU message boards asking these same question, see this link: ACLU thread
You state "Thus, to pass rational basis review, you must show not that giving benefits for heterosexual marriage helps children, but you must show denying benefits for gay marriage helps children." This is incorrect.
Marriage amounts to a subsidy by the state (see all the benefits of marriage cited in the plaintiff's brief). The state is entitled to target it subsidies where they will be most useful. Here, the state will get the most bang for the buck in helping children by subsidying otherwise more unstable heterosexual relationships. Therefore, the classification is rationale because is singles out for a subsidy the group most likely to respond differently to that subsidy.
Not at all. The Court merely has to show that the inclusion of a certain group meets a legitimate end. That it may be underinclusive in particular cases is irrelevant, and has been so since opticians were "excluded" in Williamson. Things would be different if homosexuality were subject to intermediate scrutiny, but we've not yet crossed that bridge.
I don't think that is a fair representation of what the court said, whether you agree with it or not.
The court noted that heterosexual couples could get pregnant, and therefore have a child, accidentally. Homosexual couples could not have a child accidentally. That is not a reflection on whether heterosexual couples are more or less unstable than homosexual couples, but simply a reflection of the unintended consequences of biology. A gay couple cannot acccidentally adopt a chil, and a gay man or a monogamous gay woman cannot unintentionally conceive. Thefore, the imputed logic behind the law is that marriage is necessary as an inducement to straight couples to guard against children in unstable heterosexual relationships.
What is implicit is not that there are less unstable homosexual couples than unstable heterosexual couples, or that homosexual couples are more likely to plan for children than heterosexual couples, but that the number of unstable homosexual couples having children is much less than the number of unstable heterosexual couples having children, so the subsidies provided by marriage are not necessary for the former.
Of course, this inclusionary model rather than many people's default exclusionary model needn't be right or even good, but it is a rational model which results in the policies set out by the legislature.
[*] or more accurately the view the court claims to be a rational one the legislature may hold, which is what's necessary to rebut a claim that there's no rational basis whatsoever. El Capitan and Mark F. have their points on this count.
I think both of you, again, are not focusing on the classification challenged. Arguing that giving benefits to opposite sex couples is more likely to help children still says nothing about how denying benefits to same sex couples (the classification challenged) helps any children at all. A Rickey is correct that underinclusiveness and overinclusiveness are fine in rational basis analysis, but having no cases where the classification achieves the legitimate state interest is not underinclusiveness or overinclusiveness.
Perhaps the Williamson case that A. Rickey cited will show what I mean. In that case, the classification challenged was a rule against fitting lens without a prescription. The legitimate interest was the health of the public. Now, in many cases, opticians could fit lenses without a prescription using the old glasses without any effect on the health of the public. As the Court pointed out, however, "in some cases the directions contained in the prescription are essential, if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition." So, at least some of the time, the classification challenged (no fitting lens without a prescription) achieves the legitimate state interest (health of the public).
But, again regarding denying marriage benefits to same sex couples, where are the cases in which the classification challenged (opposite sex only) achieves the legitimate state interest (welfare of children)?
Or, I ask again: Does anyone have even anecdotal evidence of even one child who was helped by banning gay marriage?
The whole Scandanavia, Netherlands, Stanley Kurtz mess (and I mean mess, because Kurtz's arguments and use of the data are lame) provide enough to satisfy how the classification furthers the state's interest (same-sex marriage weakens the institution of marriage to the point that couples will have kids out of wedlock). Even so, I don't think rational basis requires any supporting data - just a conception that can be supported by assuming facts not yet known.
Dale's point was the NY court didn't make this last part of the argument - but could have (as did Cordy).
I submit that laws, customs, and morays that have existed for 100's and thousands of years that become embodied in a societies laws do NOT have to be rationally based.
2. Who determines what is rational? Such a determination is in most cases purely subjective and/or the evidence and arguments for or against rationality are subject to purely subjective analysis and consideration. Rationality is just a pretense for denying democratic rule of the sovereign people.
Changing subjects....
Any person who believes adoption of black children can be legitemately limited to black couples, in order to better foster their cultural identity, can NOT rationally deny that children, the product of HETEROSEXUAL couplings and cultural identities, can only be properly served by being placed in the homes of HETEROSEXUAL couples. You can't rationally have it both ways. Either BOTH practices are repugnant or BOTH practices are rational and good.
Says the "Dog"
Isn't saving money also a legitimate state interest? The classification is drawn to exclude those couples (i.e., gay couples with children) whose behavior would least likely change if offered a subsidy. Therefore, the classification is rational because it saves the state money.
Plyler v. Doe is on point here. There the Court struck down a state statute that required illegal immigrants to pay for the cost of otherwise free public education. In that case Texas offered a "saving money" rationale and the Court rejected it. But to reject it the Court used some form of heightened scrutiny. Here, the Court (rightly or wrongly) is using plain vanilla rational basis review. Under that standard of review, saving money is a legitimate state interest.
Mark F. has a good point though: why do we even have rational basis review? It seems to be a vestige of the first Justice Harlan's dissent in Lochner, i.e., a very deferential reasonableness review, but there's really no basis or standard to apply. Williamson itself shows how silly the test is. We'd be much better of if courts limited judicial review cases where heightened scrutiny applies.
Didn't the "saving money" rationale also fail in Romer, which I guess also applied some form of de facto heightened scrutiny. Why shouldn't the same standard apply to same-sex marriage?
My only point is that "saving money" is sufficient for pure rational basis. Romer and Lawrence clearly engaged in some form of heightened review, even if they purport to only be applying the rational basis test. You can see the same thing in the early gender equal protection cases in which the Court begins to strike down statutes under what it claims is the "rational basis" test but then admits that it's been using heightened scrutiny and heightened scrutiny is appropriate for gender. I think we'll see the same thing here. The USSC is using some form of disguised heightened scrutiny for sexual orientation that will eventually become overt intermediate scrutiny. Today, however, state courts can avoid intermediate scrutiny for sexual orientation because Romer and Lawrence specifically avoid using heightened scrutiny language. That was probably done at least in part with the gay marriage issue in mind (see scalia's dissent in Lawrence). By not overtly using heightened scrutiny, the USSC avoids the gay marriage issue while retaining the ability to strike down other laws that are more offensive.
In short, if Lawrence was written honestly, same-sex marriage would be a constitutional right, but it was purposefully obscure to prevent that. As a result, you can get decisions like the NY Court of Appeals just gave.
By way of analogy, let's say the gov't wants to decrease the prevalence of ovarian cancer (legitimate state interest). It could presumably distribute Miracle Drug--which has 1049 associated benefits, one of which is a tendency to prevent ovarian cancer--only to women in order to advance that end. The rational relation between the women-only classification and the legitimate state interest of preventing ovarian cancer is, of course, that only women get ovarian cancer. The government doesn't need to come up with good reasons why men shouldn't get the other 1048 benefits; that has no bearing on whether the classification is rationally related to the benefit and state interest in question.
I'm not sure this test is a good one (it lends itself to ex post justifications that can mask discriminatory intent/effect), but it is what it is.
A bigger problem with the court's analysis is that it fails to adequately explain why certain groups get the benefit despite the fact that their inclusion does not plausibly advance the interest in question. In the ovarian cancer example, you would have to have a pretty good justification for including, say, short men in the drug distribution scheme but excluding tall men. Otherwise it looks suspiciously like a plan to disadvantage tall men, rather than a plan to prevent ovarian cancer.
Similarly, the court here should have been able to articulate a pretty good justification for why opposite-sex couples who can't have children get the benefits of marriage. Partly they did, by the reference to invasiveness -- mandatory fertility tests would be burdensome and probably unconstitutional. But why can two wrinkly 80-year-olds, who are just as obviously unable to accidentally have children as two women, get married? Or why not include a simple check box: "Is either spouse known to be infertile? Yes/No."
If you use the standard that the judiciary should defer to the judgment of the legislature unless the law is clearly contrary to the state or federal constitution (the standard that liberals like when it comes to gun control, affirmative action, government-granted monopolies and economic regulation), then you have to defer on laws that define marriage as a heterosexual thing.
The problem here is that homosexuals aren't prepared to use a single standard on this. They want deference on laws that they like (anti-discrimination laws to protect homosexuals) but not on laws that they don't like (marriage definitions). And homosexuals seem willing to destroy the republican form of government to get their desperate need for approval met with a government stamp of approval. I am beginning to think that the choice is a republican form of government, or widespread homosexuality: pick one.
As for tradition, let's examine that. Yes, marriage is traditionally about children. Specifically, it's about males trying to assure paternity of purported offspring, and to maintain the clan line. To this end they, much as a farmer raising thoroughbreds, amassed a group of breeding mares to own and sire children from.
[sarcasm]So yes, let's give proper weight to tradition. Marriage is about assuring males of their parental status and keeping females as cows to perpetuate the patrilineal line.[/sarcasm]
Your argument seems to go against the Court's language in Williamson itself: "The legislature may select one phase of one field and apply a remedy there, neglecting the others." This portion of the opinion dealt with the difference not between opthamologists and opticians, but between the latter and sellers of ready-made eyewear.
In the end, the opinion was spare because that's all it needed to be. Why should the judges make any argument against gay marriage beyond what's needed to justify rational basis? Despite Prof. Carpenter's update, it's not a problem for anti-gay-marriage advocates that the court didn't make their case for them, as they're perfectly capable of making the case themselves (or what case there is). And it's quite possible that Judge Smith doesn't see it as the job of the Court of Appeals to make a legislative brief out of a majority opinion. Why should we be upset that the decision is one of restraint?
For example, if NY said that we exclude gays from marriage because they like showtunes or bette midler, or because we've had enough of rosie o'donnell's antics, that wouldn't meet the rational basis test.
If they say we do it because hundreds of years of NY history has shown that marriage is a stabilizing force among singles, that a mrried home has shown to have benefits to children that out of wedlock children don't have, that it is "deeply rooted in tradition", etc... then that would be a rational basis. you may disagree with the above statement, but you can't dismiss them as nonsensical.
Even Hamilton and Madison disagreed on just what a rational basis was. It's not exact, but there are lines. I suggest we may not be able to say for sure what a rational basis IS, but we can surely say what a rational basis IS NOT.
"Thanks, CC, for confirming all the stereotypes about gay men! After all, you lived near San Francisco, so you must be some kind of authority on gay men. I think this discussion can be put back in the closet now." Ship Erect
Casting out the dissenter, and with a righteous and knowing self-regard. When in fact, rather simply, some empirical evidence was noted - no more, no less - but not of the selectively appropriate kind. Ergo, a totalizing dismissiveness, and disdain, is to be invoked.
Could be, should be: "Rationale basis review"? Since all too often what is being sought is a rationale for dismissing, tout court, democratic referendums, popular sovereignty, the will of "we the people" - while the gnostic knower, the judge, intones with a rationale, one carefully selected from the quiver of the semiotics of the righteous.
Then why do our marriage laws not allow for polygamy? That would suit this end that you have imagined just as well as monogamy--and yet, polygamy has never been recognized under American law.
Hint: our marriage and divorce laws, until quite recently, were based on a religion that even at Yale, you may have heard something about.
If you want an honest answer:
Both laws would probably pass rational basis scrutiny, at least in line with the Court's current precedents. The first law, however, might be considered a gender discrimination and thus be subject to "intermediate" scrutiny.
We don't have such a law not because it would be unconstitutional, but because no one has ever bothered to propose such a law, and if it did it wouldn't get passed. (For one thing, it would be nearly impossible to administer, and for a second, there's not really a constituency for this law.)
It's quite possible that our marriage laws as they're written today aren't connected to our needs as a nation. They may be "uncommonly silly laws." The debate is how one changes those laws: by judicial fiat or legislative choice?
One reason that gay marriage has not been recognized, IMO, is that at the moment the anti-gay forces comprise an alliance of two groups: those who disapprove of judicial expansion of "rights" and those who don't like homosexual marriage due to fondness for tradition or anti-homosexual animus. Gay marriage proponents, on the other hand, seem unwilling to reach out to the first party--many if not most of whom would be willing to work to change the laws--and instead opt for demonizing judges who express an unwillingness, in Judge Smith's words, to conclude that "everyone who held this belief was irrational, ignorant or bigoted."
Maybe it would pass the rational basis test but it would be an invasion or privacy and be impossible to administer. Better to use the bright line test: Men/Women can marry, Men/Men, Women/Women, Men/Animals, Brother/Sister, no marriage.
Just becuase something is Constitutional doesn't mean it's right, by the way. Slavery was Constitutional for the first 75 years of theis country. Denying women sufferage was Constitutional for the first 130 years of this country.
I also agree that it would never be passed.
Better yet, someone give me a rational basis for allowing gays to marry, but not allowing a brother and sister to marry, or a mother and son, or a man and two women?
Basically, as much Lawrence and Romer sought to deny it, morals and the community's views of society are rational bases for legislation, they are the backbone of all laws.
If the courts started striking down laws under rational basis analysis where the statute can be shown not to further the goal, then a lot of the statutes on the books across the nation would be at risk. To give a gross example, lets take the War on Poverty. Poverty still exists at approximately the same level as before after spending over a trillion dollars to eradicate it, and so, it could be argued that there is no real correspondence between the goal and the statutes, and, thus, it should be abolished. There are thousands of other laws that would be equally vulnerable. How about concealed carry laws? Whatever data there is, supports, or at least doesn't refute, that crime isn't reduced by refusing to grant permits to law abiding citizens. Or, someone mentioned polygamy. How about the law here in CO that all those braiding hair commercially have to have state beutician licenes? Or, even that beauticians and barbers have to be licensed?
Maybe it would pass the rational basis test but it would be an invasion or privacy and be impossible to administer.
why would it be impossible to administer? you put a line on the license that says "to the best of their knowledge and belief, both parties certify that they are fertile and that the bride has not been through menopause." then if the government finds out that she was post-menopausal when she got married, they arrest her and charge her with lying on the marriage license application and possibly tax evasion as well.
I'm puzzled by this claim. Is there really a large group of people taking anti-gay political positions in general based only on disapproval of judicial expansion?
My impression is that those who only oppose judicial expansion say just that -- adding that they support enacting laws to grant gays greater rights. The reality is we are seeing some pro-gay laws enacted through legislatures. It's happening more slowly than I'd prefer, but as they say, "that's life".
I have to disagree. Just becaause the legislature BELIEVES it to be so is meaningless. For example, with the marriage laws if the reason the state gave was because they belive gays are possessed by aliens, or that all gays are child molestors, or that gays talk funny, none of those would pass rational basis scruitiny, even if the state sincerely believed them.
It means it has to be reasonably related to the interest. Now, admittedly reasonably is somewhat vague, but I think most people know what is and isn't reasonable. The 4th amendment prohibits unreasonable searches and seizures. I suggest reasonable in the rational basis test means the same as reasonable in the 4th amendment context. It is a subjective term, but it is not devoid of meaning.
Somewhere in that glossolalic pile was an argument that Clayton Cramer's characterization of gay people was empiricism. But in fact, what he said was that it is accurate to call "a large portion of gay men" "hopelessly promiscuous, unstable, histrionic, and self-absorbed," based on his having spent "some time in the San Francisco Bay Area."
There is a practical difference between empiricism and being led to stereotypes by your prejudices. Cramer's characterization of gays, based on his own very limited and relatively brief observations from his car window, are not empirically sound.
In Turner v. Safley the court explicitly rejected the lower court's use of a strict scrutiny standard by the lower court to evaluate the constitutionality of denying an inmate the opportunity to marry. However, applying the rational basis test the court nevertheless overturned the prison's choice to deny the inmate the right to marry despite the fact it would likely consume additional prison resources to conduct the marriage in addition to the extra governmental benefits specifically listed as a component of the right denied to the inmate. Importantly the inmates ability to procreate, age or even eventual release from prison were not even considerations of the court.
I think the correct way to view the court's precedent, is to say they are demanding a rational basis for drawing the line between those who can and can't marry. Thus it does not pass the rational basis test to allow many individuals who can't produce children (infertile, too old etc..) to marry and then deny prison inmates the right to marry on these same grounds. Similarly the effort on the part of prison officials didn't fly because the prison officials allow many equally costly interactions (visits etc.).
This is simply the only plausible way to read Turner v. Safley so shy of overturning this decision the courts need to establish a rational basis for denying gays the right to marry but not infertile couples, post menopausal women, deadbeat dads, and other individuals incapable of easy reproduction.
Speaking of deadbeat dads I still don't understand how the NY court could plausibly get around applying the compelling interest standard used in Zablocki v. Redhail. Sure, I realize they argued that gay marriage is not deeply entrenched as straight marriage is but one can hardly say that the right of divorced dads who fail to pay their child support to get married is deeply entrenched either. I really can't see any way this distinction is justified.
It (this, upthread) was rhetorically intended, but perfectly meaningful as such. As for the "pile," review your own. What you're referring to remains an (as in one) empirical observation. A "large portion" is just that, not necessarily all or even most and not suggestive of any specific quantification at all, but a large portion nonetheless.
Here's a thought. If you're going to address the subject of empiricism in attempting something of a retort, you might actually supply a quote, and therein an empirical reference point, before you supply your own pile. It was rhetorically intended, and remains perfectly sound in that vein.
Turner v. Safley did not apply the rational basis test. Rather, it applied the "reasonably related" test that applies to limitations on the constitutional rights of prisoners. See Part III(B) of the opinion. In addition, because the marriage at issue was a heterosexual marriage, that court stated that the right to it was "fundamental" and restrictions would otherwise be subject to strict scrutiny had the plaintiff not been a prisoner. In the same-sex marriage case, the NY Court of Appeals held (rightly or wrongly) that access to same-sex marriage was NOT a fundamental right. Therefore, restrictions on same-sex marriage need only meet the rational basis test, not strict scrutiny or the speical reasonable relationship test applicable to restrictions on prisoners' constitutional rights.
I'm sorry, but "unreasonable" means one thing to the vast majority of Americans, and something completely different to the ACLU and their puppets in black on the bench.
New York City wanted to start searching people entering the subways, out of concern about subway bombers. Most people were able to figure out that as onerous as this was, it was, considering the circumstances and the potential hazards, "reasonable." The ACLU could not.
A random search, I would agree, might well qualify as unreasonable. A search that looked at people that are most likely to be caring such a bomb, Middle Eastern appearing young men, would be reasonable to most Americans--but not to the ACLU. (Hint: suicide bombers are seldom named Sven, Luigi, or Christopher. They are often named Mohammed, for some odd reason.)
A few years ago, one of the liberal members of the California legislature introduced a bill to allow checkpoint searches of cars for guns. His bill specifically prohibited the use of those results for drugs. This sort of search seemed "reasonable" to him because they were looking for guns--but it would not have been if they were searching for drugs.
Reasonable is entirely in the eye of the beholder. The puppets in black are told that some things I find offensive are "reasonable," while other things are not. The term is not devoid of meaning, but it is so infinitely flexible that it now means nothing at all.
1. The 10th amendment. It still has exists, right?
2. Insofar, as the principle of gay marriage is that people whould not be discriminated against based on sexual desire or orientation, if you concede gay marriage, there is no rational basis for denying any other form of marriage. If 2 men who love each other can get married, why not two brothers who love each other, why not a man and two women who love each other, once you define marriage as recognition of a loving relationship, it becomes open to all loving relationships.
3. Gay ten to have higher STD rates and to engage in unsafe sexual practices. There's a public health issue that the state has inasmuch as granting further rights to gays signals tacit approval of their unsafe behavior and could well lead to an increase in it.
4. All the evidence from Europe on the effect gay marriage has on society and straight relationshpis and out of wedlock births, etc... That too is a public health and safety issue
5. Gay marriage could affect business and commerce in the state
6. The undisputed general police power of the state to prescribe regulations for the welfare of society
Need I go on?
It's likely that the REAL reason it would be held unconstitutional to prohibit infertile people from marrying, and unconstitutional to prohibit prison inmates from marrying, but constitutional to prohibit same-sex partners from marrying is nothing less than animus against same-sex relationships.
It's ALL about hatred against same-sex relationships.
Just because the ACLU or the liberals on the SC abuse the term doesn't mean it doesn't have meaning. They'd abuse a term even if it was crystal clear. Is reasonable any less open to abuse than "speech", "exercise of religion", "commerce", "necessary and proper", "due process", "cruel and unusual"
All of them have meaning. Just because a judge disregards that meaning is no reason to ignore the meaning altogether.
If we go by your view, what's the point of the Constitution? We may as well get rid of it since it's so open to abuse and distortion.
Where in the text will I find the right to marry? Can someone point me in the right direction, please.
To be very explicit now, I am not advocating a return to that tradition of marriage. I am simply highlighting that the "tradition" argument put forth by JunkYardLawDog implicitly selects one (religious) tradition and establishes that (religion) as the law of the land.
Speech has a specific meaning, and yes, liberals have decided that it includes burning a flag, because that's "expressive conduct." It isn't speech by any notion the Framers would have understood.
The Framers weren't unfamiliar with "expressive conduct," as reading accounts of various mob actions at the start of the Revolution will demonstrate. But they also knew that there's a lot of "expressive conduct" that is considerably more threatening and disruptive to public order than "speech." The intimidating tactics used to close courts in Massachusetts just before the Revolution were effective, but they were on the edge of causing violence.
There's no substitute for putting honest people on the bench. I'm concerned that as the radicals have taken over the legal academy, and the sophistic tendencies of the legal tradition have become more powerful, the intellectual integrity required to make decisions based on the law, instead of personal preference--may not be available in the legal profession. I like a lot of what Justice Scalia writes, but he sometimes falls into the same legal trap of letting his preferences for what the law should be take precedence over what the Constitution requires. I'm thinking of both the Raich decision, and the Oregon euthanasia case.
If you think the current tradition of marriage needs revising, then there's a process for that: persuade the people, and their representatives will change the law. But homosexuals are insisting on using the tyranny of their puppets in black to "change the tradition."
Yeah, guess WHY that religious tradition ended up as the law of the land. It has something to with this concept called majority will. It is also why we prohibit murder, rape, robbery, perjury, and a few thousand other actions that the majority thinks, in their narrow minded ignorance, are a bad thing.
Not really, as it isn't simply "tradition" which is being selected over "social change" or vice versa.
More basically, and more constitutionally, it's being suggested that "we the people" should have the say, certainly prior to any black robed jurists, over which traditions and which changes are to be enacted into law.
And no, no "religion" is being "established" as the "law of the land" in that recognition of primary sovereignty, in recognizing "we the people" as sovereign.
Why can't a man marry an eight year old girl? That's not equal protection of the laws!
Why can't a man marry three women, or two men and four women? That's not equal!
Homosexuals who argue that they aren't enjoying "equal protection" have two choices:
1. Agree that anything goes.
2. Admit that it is legitimate for the government to regulate what constitutes a marriage, but insist that it is unfair to treat homosexuals differently from heterosexuals.
From the majority opinion:
Apparently, you do not disagree:
What's your beef?
Equal Proection has nothing to do with rights. It has no substantive content. It just means that whatever laws are in place, they have to be applied equally regardless of race, color or creed or nationality. While there can be debate over how gender or sex fits in to that, there is no debate that sexual proclivity does not figure in.
The equal proection clause would not prevent a state from banning marriage altogether. It would orevent it from only allowing it for whites, once it has passed the law. But if the state wants to ban marriage for everyone, there's nothing in the US Constitution that would stop them.
Isn't that what they try to do, when making the affirmative case for gay marriage? I.e. argue that (1) same-sex marriage is not incompatible with the underlying purposes of marriage, as it is understood in modern society (i.e. not the old Book of Common Prayer rationales), (2) that denial of same-sex marriage works a meaningful wrong against gays and lesbians, and (3) that traditional prohibitions against other prohibited marriages (e.g. consanguinity, bestiality, infancy, etc.) are of a different type than the prohibition on gay marriage, and therefore that their individual rationales are not undermined by permitting gay marriage. They also, as a counterargument, have to argue that there will be no ill side-effects from actively tinkering with the legal definitions for "marriage."
Whether their arguments on these counts are persuasive or not (I think it's a rather mixed bag) they're clearly making them.
So the "privilege" of a male marrying a women is equally extended to heterosexual and homosexual males. There is no inequal treatment whatsoever.
Now if you argue that homosexual male must be allowed to have a marriage license to marry a man simply because he wants to marry a man, then how is that argument inapplicable to a man who wants to marry a pig, or a man who wants to marry a man and a women.
Surely Bi-Sexual people are just as entitled as homosexual people to enjoy the privilege of being married. The only way for a bi-sexual woman to fulfill her biological need and right to marry would be to marry BOTH a man AND a woman. How is the argument that homosexual males can compel society and its laws to allow them to marry NOT applicable to a bi-sexual women wanting to compel society and its laws to allow her to marry BOTH a Man AND a Women??
There is no rational distinction in the homosexual male versus bi-sexual women argument, and in reality no rational distinction between multiple coupling marriages of groups of men and women.
A man may want to marry his dog so company paid health insurance could extend to his dog. Vet bills are pretty expensive. What is the rational argument for denying male dog couplings if there is found to be a constitutional compulsion to allow male/male couplings?
If anyone denies that a bi-sexual women has exactly the same equal protection and other arguments as a male homosexual than what is the rational basis for denying a bi-sexual woman the right to simultaneously marry Both a Man and a Woman? Can't you admit there would be no such rational basis and any attempt to argue that male/male marriages is OK but bi-sexual woman/woman/male marriages are not OK would be based solely on HATRED of woman/woman/male marriages??
Says the "Dog"
no we dont. we have to argue that the ill side-effects will be small, or will be outweighed by the positive effects. obviously there will be at least some negative effects: people will get married who shouldn't have, and there will be divorces and broken hearts and nasty legal battles and so on just as there are with straight people.
but most of the purported ill side-effects we actually have to argue against are completely bogus. marriage will be destroyed? get real.
Who here arguing for a constitutional right for homosexual marriage has the guts to admit was is plainly obvious that those same arguments advanced to demand a constitutional right to male/male marriages is equally applicable to a bi-sexual woman demanding the right to marry BOTH a man and a woman simultaneously??
I'm curious how many pro-homosexual marriage hypocrites do we have here? Will any of them come to the aid of the poor bi-sexual woman seeking to marry the man and woman of her dreams?
Says the "Dog"
junkyardlawdog, i know you're fake, but i'm going to address this point anyway because it evinces a fairly common misunderstanding of bisexuality. a bisexual woman needs to marry both a man and a woman like a straight man needs to marry a blonde, a brunette, and a redhead. i.e. not at all.
bisexuality is about more people being in the feasible set.
You're confusing me with someone else. I assure you I'm no fake.
You state a bisexual woman doesn't need to marry both a man and a woman. You apparently feel that a bisexual woman must deny half of her identity. You have not expressed a rational argument merely your opinion that it isn't wise to marry more than one couple and a bi-sexual woman should be denied equal protection of the law to marry that many and woman whom she chooses.
Many other people have an opinion that homosexuals should not be able to marry, just as you have an opinion about bi-sexual women. What makes your opinion better than other people's? What makes your minority opinion better than the opinions of the majority of the sovereign?
Maybe we should just make you our sovereign lord?
Says the "Dog" (who is still waiting for a rational argument on why the same arguments for compulsion of male/male marriages doesn't apply to a bi-sexual woman seeking a woman/woman/male marriage.)
Make this argument if you want, but that's an argument of persuasion, not of rights.
For what reason? If this is a "right to marry" then we get back to the first question I raised--what allows the state to prohibit some marriages, but not others?
What drives those other bans? Bestiality, child marriage--these are bans that you might be able to come up with pragmatic arguments against (and especially so for consanguinity), but the real reason that sibling marriage is banned is because Judeo-Christian believes didn't allow it. It's originally a taboo--just like homosexuality. On what basis do the tyrants in black strike down one taboo-based marriage regulation but not another, if this is a matter of rights?
Do you really think Courts would allow laws which prohibit the infertile and elderly from marrying to stand? And if they would strike down those laws, how could they possibly let bans against same-sex marriage stand?
I believe, reading between the lines, that the majority was influenced by a desire just not to throw themselves into the fire on an issue that would be painful to them and could realistically only diminish their ability to focus on the many other issues in future terms.
Also, it must be a tad easier to say "go tell it to the Legislature" when polling (to the extent it is accurate) seems to say that the people of New York agree with a signficant part of the plaintiffs' claims and perhaps even with its totality (by a narrow margin but making new conversions every day). Is it truly not a better thing (big picture) if the Legislature were to provide remedy to the plaintiffs?
If I were writing an opinion that I believed people in the future would look back upon and shake their heads in disapproval, I would make the argument as abbreviated as possible too.
The fundamental right at stake is the right to be able to marry *someone* for whom it makes sense for you to marry based on who you are. For gay people, marriage only makes sense to a person of the same sex. Prohibit same-sex marriage and you have effectively denied a gay person the right to marry at all.
In contrast, prohibitions against polygamy do not run afoul of the fundamental right I described above.
The great difficulty with all of these arguments is that the bans on gay marriage reflect the religious and moral values of the majority of Americans--even in places like California. Now, since most of you here are lawyers, you probably have no idea what the values of Americans are like. That's also why so many of you have no idea why the efforts to impose gay marriage are so successful at mobilizing even a lot of Democrats to vote with Republicans to say, "We are not going to put an official stamp of approval on same-sex marriage."
By the way, where did this "right to marry" come from? If a state wants to ban marriage entirely I don't see why they can't. Is the right to marry spelled out near the right to privacy, the right to abortion and the right to sodomy?
I don't know where the right came from, but it's been recognized. For example, these quotes come from Loving vs. Virginia:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. and
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.
Though not enumerated, the right to marry looks suspiciously like one of the unenumerated rights retained by the people.
Can states ban marriage entirely? I suppose that depends on what you mean by banning marriage entirely. I'm relatively certain they can't ban sacramental marriage.
However, no state has banned marriage entirely. They all seem to promote the condition. As long a state recognizes this legal status -- desired and entered into willingly by many -- the fourteenth amenemdment requires the state to provide equal access or only limit access with due process of law.
Out of curiosity, could you explain your claim the 10th amendement provides a rational basis for banning same sex marriage? And if the 10th amendment permits this, does this mean the Federal government can't ban it?
Well, you can't generally make an argument that the law may not discriminate, under equal protection, only that the law cannot discriminate on the basis of a particular category. Gay marriage activists might argue that with respect to marriage, gender (intermediate scrutiny) is the relevant category that current marriage laws discriminate under, and that this ought to be stopped. Insert Loving v. Virginia etc. etc. Discrimination by gender is not implicated by bestiality, consanguinity, polygamy, pederasty, etc., so a decision tightly focussed on gender discrimination implications of the marriage laws wouldn't carry over. In addition, because it is intermediate scrutiny, there's significant scope for policy arguments and understanding (persuasive rationales, that is) to play out in the courts.
Now, that's not to say that I think the argument is accurate -- I don't think there's anything in equal protection or anything else under the Constitution that actually prohibits marriage from being limited to the traditional understanding. But the argument can be made without implicating polygamy, etc.
I think your concern might be more problematic if the argument that because marriage is a fundamental right => gay marriage must be allowed -- then, that opens the door to all kinds of suits in favour of polygamy and consanguinous marriage and so forth (bestiality and pederasty seem like harder arguments, because of consent issues). But that's not the only argument they could make.
Substitute the word "pedophile" for "homosexual" and explain why a ban on adults marrying eight year olds isn't just as much of a violation of a pedophile's rights. It doesn't matter that most pedophiles aren't interested in getting married; so far, it appears that most homosexuals aren't interested in getting married, either.
What you don't want to face is that homosexuals are not just like straight people, except for who they love. They are clearly not. Some that I have known were reasonably emotionally healthy, but the average homosexual is damaged in a way that the average straight is not.
But that's only because you just stacked the deck with your own interpretation of what that fundamental right ought to entail. Someone? Why? Why is that any more compelling than "someone of the opposite sex?"
1. Interracial marriage bans are a liberal innovation of the late seventeenth century; they are not at all traditional, and were never dominant in American history. Defining marriage as heterosexual, however, is not only the tradition in Western culture; it is the tradition in every culture.
2. The 14th Amendment was adopted specifically to prevent states from discriminating based on race. There is absolutely no evidence that anyone in 1868 understood it to prohibit discrimination based on sexual orientation. Remember that homosexual sex was a felony everywhere at the time.
3. The statute in question in Loving did not simply refuse to recognize the marriage of the Lovings; it threatened them with prison if they did not leave their state of residence and stay away for at least 25 years. No homosexual couple is being threatened with prison for their pretend marriages. The states are simply refusing to take any action to recognize these pretend marriages.
I don't disagree with your conclusions re: the Loving analogy. That is, however, the analogy that is always trotted out. With respect to the historical circumstances behind the 14th amendment --
I don't know Constitutional history well enough to say whether this is true or not. It sounds like it ought to be true, since womens' suffrage had not yet come around. But either way, there is precedent enough indicating that gender-based classifications are subject to intermediate scrutiny. Other than, perhaps, Justice Thomas, I don't think any of the current justices are likely to give any serious consideration to the historical circumstances at the time of enactment, sufficient to overcome subsequent court decisions.
I can tell you that the first state to decriminalize sodomy was Illinois, in 1961. These laws go back to at least the buggery statute of Henry VIII, which banned bestiality, oral sex, and anal sex (regardless of gender). In the American colonies, especially from New York northward, there were often specific laws banning homosexual sex.
So why do we allow laws that segregate public restrooms by sex? That discriminates based on gender, and striking down those laws is far less dramatic in its likely impacts. (By the way, into the early 1970s, California law didn't deal with sex segregation of restroom at all--it was strictly a matter of social custom.)
So much for taking what they do seriously.
Is it literally true that the argument has to be for a particular category? I'm not a lawyer and I'm asking because I honestly don't know. It also seems odd based on this wording:
Hypothetically, if a state denied one specific individual the legal protection granted others, that would be a prohibited, right?
What gives the state the right to interfere in one of these relationships, but not the other? Where, exactly, does the federal or state constitutions grant power to interfere with one relationship but not the other?
I hold animus towards all totalitarian systems of thought. Homosexuality is one of those totalitarian systems of thought, tolerating no dispute, no difference, and no argument--and increasingly, no republican form of government. That's why homosexuals use the legal system to punish a printer who did not want to print same-sex wedding announcemnts--the dread fear that someone, somewhere, might not approve of homosexuality. That's why homosexuals tried to have Pastor Ake Green sent to prison for preaching against homoseuxality. That's why homosexuals have attempted to destroy organizations that were not prepared to accept them, such as the Boy Scouts. That's why homosexuals have tried to intimidate political opponents, including death threats and obscene phone calls to my kids, some years ago.
Homosexuality seems to be incompatible with a republican form of government.
Look, again you're revealing an underlying notion that is going undefended. Why is that necessarily singular? Why is your definition superior to a more expansive definition that says "lifemates" rather than "lifemate?"
Regarding the purpose to marriage being limited to just opposite sex couples, I think the obvious traditionalist response would be (A) that there's multiple purposes to marriage (at least 3 in the traditional account: mutual comfort, procreation, restraint of fornication -- that last is the one the New York court seems to have picked up on, somewhat bizarrely, since it's been largely eroded in favour of individual sexual autonomy, at least in the law), and (B) that because the procreation of children is one of these fundamental purposes of marriage, restricting it to opposite sex marriages makes sense.
Now, of course, gay marriage advocates come back and say "what about infertile couples?" Or couples who have no intention at all of procreating, for whatever reason. But these examples no more invalidate the traditional conception of marriage than people who marry for convenience (i.e. no mutual comfort), or marry in the expectation of having a modern "open" marriage (i.e. no restraint on fornication). "Marriage" as an institution didn't emerge fully formed from the brow of some godlike legislator (religious theories to the contrary notwithstanding), but developed, together with our society to meet certain needs in a rough and approximate way. It's not narrowly tailored to its purposes by any means. But the fact that it's not narrowly tailored to its purposes doesn't justify an expansion incompatible with its underlying purposes. Instead, you have to (as you have done) propose some alternative purpose, which has grown up to supplant the traditional understanding of marriage and its purposes. But many people still hew to that traditional understanding of marriage and its purposes, and would reject your proposed singular purpose.
That would be a bill of attainder, I think, and prohibited on other grounds. But more generally, almost every law discriminates. For example, am I eligible to receive social security benefits or not? Some people are, others aren't, and the ones who aren't are being discriminated against. This particular form of discrimination is okay -- as a general rule, it's only discrimination with respect to "fundamental rights" or on the basis of certain protected categories (e.g. race, national origin, etc.) that trigger the equal protection clause.
Do you really think Courts would allow laws which prohibit the infertile and elderly from marrying to stand? And if they would strike down those laws, how could they possibly let bans against same-sex marriage stand?
The trouble with this kind of rhetorical question is that it's not subject to empirical proof. In some fictional world in which there were all of a sudden a political majority that sought--for some bizarre reason--to remove the rights of the infertile and elderly to marry, yes, I think the courts would let it stand. However, there's no good way to argue this. After all, the court would have to identify (a) a legitimate state interest in redefining marriage, and (b) that this was rationally related. Presumably in the fantasy world of this radical shift, the legislature made this decision based upon something, and a court might then uphold it.
A more plausible scenario: the legislature decides for whatever reason that it will do away with civil marriage entirely, shift all family and estate law default rules away from marriage and instead give only a tax break to "any man and woman deciding to raise a child." The courts might very well find that constitutional under rational basis. Again, however, this fantasy-world is only barely more believable.
Now, that's legal analysis. From a legal realist perspective, do I think the court would let such a restriction stand? Well, no. But that's simply because the only world I can envision in which an anti-infertile bill is passed by the New York State Legislature is one in which the politicians were actually high on ecstacy while voting.
Which is to say simply that the status quo matters. If we already had a tradition of gay marriage and the legislature were voting to deny it, as a practical matter the courts might shunt aside a reasonable application of rational basis and go for the kind of fudge we saw in Romer.
So, to answer your two questions: assuming the legislature were acting in response to some perceived concern,