Jul 27, 2006

rational basis review: the key to the Washington State DOMA decision

From the decision [pdf]:
DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature’s decision that only opposite-sex couples are entitled to civil marriage in this state.
Let's assume for the moment that the court is correct on its grounds for relying on the rational basis standard. The decision continues:
Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes. Accordingly, there is no violation of the privileges and immunities clause.
As the decision explains later,
Moreover, the correct inquiry under rational basis review is whether allowing opposite-sex couples to marry furthers legitimate governmental interests.... Granting the right to marry to opposite-sex couples clearly furthers the governmental interests advanced by the State.
Notice the missing word: "only." Clearly, allowing heterosexual couples to marry advances state interests. But consider an analogy: a "Defense of Voting Act." The State decides to ban gays from voting, claiming that "allowing heterosexuals to vote furthers legitimate governmental interests." Certainly true--but would it then follow that disallowing homosexuals from voting would also further the State's interests? No. The chain of reasoning is a non sequitur.

Nonetheless, in its deference to the Legislature, the Court claims to sit under a massive burden of proof. To defeat the rational basis, the Court would have to show that there is no "conceivable set of facts" to support a legislative decision, even if it is contradicted by empirical evidence presented at the time the bill passes. The Court, by its own reasoning, is not allowed to review the evidence or testimony presented.

According to the Court, the mere existence of an argument--no matter how flawed, fallacious, or unsupported--that gay marriage somehow dilutes heterosexual marriage is enough to say "hands off."

Fairhurst, in her dissent, repudiates this gutless view of rational basis testing [pdf].
Despite the deference afforded to the legislature, the rational basis standard is not without teeth--“the court’s role is to assure that even under this deferential standard of review the challenged legislation is constitutional.” [DeYoung, 136] Moreover, this court tends to afford more deference to the legislature when considering economic statutes than it does when considering regulations curtailing personal civil liberties....
Thus armed, Fairhurst continues, echoing my logical critique:
First, the plurality identifies encouraging procreation as a legitimate state interest.... But there is no logical way that denying the right to marry to same-sex couples will encourage heterosexual couples to procreate with greater frequency. Second, the plurality points to encouraging marriage for relationships that result in children as a valid state interest.... But denying same-sex couples the right to marry also will not encourage couples who have children to marry or to stay married for the benefit of their children. Finally, the plurality declares that DOMA may be rationally related to the State’s interest in encouraging the raising of children in homes headed by opposite-sex couples.... Even if such a goal is valid, which seems unlikely, denying same-sex couples the right to marry has no hope of increasing such child rearing. The denial of the right to marry to an entire class of persons is completely unrelated to the proffered state interests. Thus, DOMA is not merely underinclusive and/or overinclusive, it is wholly irrational.

3 comments:

Mark said...

Whats with all this logic stuff?

Jesus hates fags, get with the program.



Well said sir *applaud* - to expand my damn resume, Ill be linking to your post in my blog.

Anonymous said...

You agreed with J. Fairhurst:

"But there is no logical way that denying the right to marry to same-sex couples will encourage heterosexual couples to procreate..."

Well, obviously you and Ms. Fairhurst are feeling rather smug about your superior talents in logic. Can you imagine? That entire legislature, along with five WSSC Justices, are nothing but morons! Irrational. In the words of Samuel Alito, in his criterion for the rational basis test, “stark raving mad.”

Oops… you should know better! “…there is no logical way…?” Big red flag there! Haven’t you ever worked a book of logic puzzles? A sucker bet to be sure.

A bisexual man is in love with another man. They want to settle down, get married. But they can’t get legal recognition for their marriage! Dreams smashed, they drift apart. Before long, the strapping young man meets a woman… love, marriage, sex, baby. The established definition of marriage has created a baby that otherwise wouldn’t have been.

A bittersweet outcome to be sure, but I think it is a decent logical refutation. Remember that the rational basis test does not require the legislators to be smart, it only requires them to have SOME RATIONAL BASIS for their belief that the legislation will advance a

So maybe you aren’t such an exceptional logician? Maybe, just possibly, some of the legislators thought of other scenarios? That is why the rational basis claim is very, very rarely successful in overturning legislation. The legislature doesn’t need to have a GOOD plan, or a smart plan, they simply need a plan that is not 100% refutable by pure logic. Once you get past that, it is all a matter of opinion, and justices are forbidden from holding their opinions above those of the legislature.

If you read any significant number of Supreme Court decisions, you will discover that very often they say something like "...while this is not the outcome I personally prefer, and I would work against it if I were a legislator, but in this case there is no legal basis for overturning the will of the people."

I believe that those who wish to redefine marriage are choosing a self-defeating strategy… by trying to get the courts to override the popular will of the people, they are only angering and mobilizing their political opponents. However, by chilling a bit, going down to your local GL resource center and getting hooked up with a lawyer who can set you up with a good “civil union” package, signing some contracts and getting 80% of the benefits…. Go down to your local gay friendly church or synagogue and go for the big wedding!

Okay, now wait a few years… Remember, every year a lot of “children of the depression”, who are very set in their ways and will likely never change their mind about the issue, will pass away. At the other end of the pipeline, there is a stream of young people who have lived and known and worked with G&L people. The will of the people will be changing…

Maybe accept an intermediate step… legally recognized civil unions that are equivalent to marriage in all but name? Polls in many states indicate that this might be feasible now.
My guess is that they will be passable ten years before society is willing to change the established meaning of the word marriage.

The only real difference between that and a legally recognized gay marriage is the principal of (nearly) full acceptance. Can that be rushed? I doubt it…it is not a matter to be settled in courts and legislatures. But I think it will come before we know it.

Anonymous said...

How's this for a logical refutation?

There is no reason in your hypothetical bisexual men drifting apart case that had they been able to get married that they wouldn't have been able to have kids.

They have the option of in-vitro.
They also have the option of adoption.

If someone wants to have kids and they can get adequate support(roof over their head, steady income) they will do it.

The survival of the human race does not just depend on churning out more babies. The world has around 7 Billion people today. How those people and their descendants are able to adapt to the environment, survive, and pass on DNA doesn't just have to do with them being born, they need a stable environment. The purpose of a family isn't to just make babies it's to raise them, and same-sex couples raise children all the time.

How can more children stuck in the foster care system be serving a rational state interest?