Prop 8 Preview: The “Basis” Is The Thing

( – promoted by buhdydharma )

As you look at today’s Prop 8 ruling, I want you to think back a few weeks to the Massachusetts Defense of Marriage Act (DOMA) rulings for a bit of legal logic that will make a huge difference as this case moves through any appeals process.

What I want you to think about are two moderately obscure concepts: “strict scrutiny” and “rational basis”. The difference between the two will tell us how hard Prop 8 will be to defend, and we’ll quickly walk through what you need to know, right here, right now.

We have a long discussion available, here and here, that explains exactly what happened in Massachusetts a few weeks ago, but the short version is something like this: a series of Plaintiffs, including private persons and the State of Massachusetts, sued the Federal Government, alleging that DOMA violates the Constitution.

Judge Joseph Tauro, of the District of Massachusetts, ruled in two rulings, released on the same day, that DOMA does indeed fail Constitutional muster, but he added a rather unusual twist to the ruling, and to explain that twist, we now need to talk about the concepts of “strict scrutiny” and “rational basis”.

It works like this: according to the Supreme Court, some rights are more “fundamental” than others. If a government seeks to intrude upon one of these fundamental rights, they need a very good reason…one that’s so good, in fact, that it can survive the “strict scrutiny” of an examining Court.

Marriage for the purpose of procreation has already been established as a fundamental right by the Supreme Court in the 1967 ruling Loving v Virginia; nobody’s ever really specifically addressed the question of whether those who do not intend to have children have that same fundamental right to marriage.

Other rights are considered less fundamental; governments can intrude upon those “liberty interests” if the intrusion:

“…is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]… …As such, a law must fail rational basis review where the “purported justifications…[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects…”

That intrusion is far easier to justify under this “rational basis” standard than it is under strict scrutiny.

So here’s the twist: in the Massachusetts cases, Plaintiffs argued that DOMA failed the strict scrutiny test-and if marriage without procreation is considered to be a fundamental right, then the Plaintiffs should prevail, and DOMA should be ruled unconstitutional.

But the Judge ignored that argument.

Instead, he analyzed the case from a rational basis point of view-and even under that far less restrictive standard, he ruled that there was no rational basis for the existence of DOMA. In fact, during rational basis review the Defendant’s attorneys, or even the Judge, can invent their own “rational bases” for the law, during the trial, and apply those to the argument, and even with all that help nobody could figure out any reason for DOMA to exist-except for the possibility that a majority of the Congress at the time just didn’t like gay people.

Again, from Tauro’s opinion in Gill v Office of Personnel Management:

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it…

…As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

And that’s what I want you to be looking for today: does the opinion from California look beyond strict scrutiny and analyze this case under rational basis review-and if they do, will the challenge to Prop 8 be upheld, even under a standard that is easier to defend?

If Prop 8 fails, even under rational basis, it’s going to be a lot tougher for the Supreme Court, who we assume will eventually be getting this case, to justify keeping the law alive. That’s because they would presumably have to find some rational basis of their own to assign to the law, which, so far, has proven to be rather a tough thing to do.

There’s still a few hours to wait, so go grab a coffee, settle back, and wait for the fun…but it will indeed be a big legal deal, especially if a rational basis analysis is applied, and Prop 8 still fails.


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  1. …between 1-3 pm pacific time, and we’ll walk through whatever happens after that.

    • melvin on August 4, 2010 at 23:26

    text up at towleroad – I can’t make Scribd embed here

    stay apparently tossed too, so marriages can begin . . . . right about now

  2. …. intent of religious based “marriage,”  then it would resemble cell division and no second party necessary.  Otherwise there is no reason for God to have created a model that sometimes fails because of biology, nature, haunted spirits, whatever,  yet the supposed adherents of God’s will call this “sin,” which implies a judgement of others.  But God is the only judge.  These people have taken it upon themselves.  That is wrong.  It questions the Creator.   Unless the next step was stoning the infertile.  I wouldn’t put it past them.

    Note also how all these conservative people, with the deep concern for the unborn, and children, really like the unborn and children so much they’re busy now trying to deport the unborn’s parents in Arizona, because they had the nerve to accidentally or purposely reproduce themselves in this country of conservative baby lovers.  They’d like to deport the little brown born ones, too. But that’s another battle.


  3. Looks like on appeal the Spiritually Pure Crusaders Inc.

    will have to come up with some real evidence other than what God has whispered in their ears. I think this decision will be upheld by the 9th circuit, but (if they take it) the High Court of the Absolute Truth Knowers, in the land of the three great branches of the dying tree,

    will most likely send it back down to the trial court with some arcane, biblical instructions of natural law. My guess is that this will go on for quite awhile. However, it’s a toss up if the Supreme Court would even take it.

    Let’s hear it for today’s ruling–Hip Hip Hooray!

    • melvin on August 5, 2010 at 02:51

  4. fact-based judgment that will be hard to refute.

  5. My diary at GOS arguing that the victory today is permanent, that it won’t be overturned.

  6. … its fine.

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