This is a great article. It shows the insanity of the court quite plainly...and further confirms my suspicion that this was indeed politically motivated. The legal justification for discrimination is simply inadequate, and, makes our Justices into the biggest fucking chickens I have ever known.

The reconstruction of the argument as *gay marriage undermines straight marriage* is indeed something you hear a lot of from the Christian right, and it is indeed a stupid point. It's not an argument. It's the statement of a indefensible premise for one.
BUT I don't see anyone using this partciular argument in the current decision. The point is simply whether the legislatures stated intention in involving itself in matrimony in the first place is a reasonable one.
Here's an analogy. We have laws that specify required disability accomodations. The legislature gets involved with such things to serve a particular interest: to allow otherwise normal people to have the mobility required to live dignified lives. Does that mean that the legislature ALSO has to provide laws granting accomodations for the deaf, blind, and mentally retarded (e.g. signage a 3 year old can understand). While such accomodations might be desireable, it would not be appropriate for the court to require them based on the legislatures decision to grant mobility accomodations.
Likewise the legislature's involvement in matrimony is said to serve the interest of maintaining the integrity of biological families. That it might be desireable to promote the integrity of other families doesn't give the court the ability to force the legislature to pursue that also.

While I sympathize with this, the passage above seems to misunderstand the role of the judiciary in our system, and it doesn't think about the implications for the system of having the court engage in the sort of review it advocates.

Trust me, we're better off having the courts not do the sort of review being proposed. In the aggregate, our team would not come out ahead, we'd just lose a lot more fights, and it would serve to further politicize the judiciary.

Unfortunately, this particular issue is not one where strict scrutiny has historically applied. Once the court says rationale basis is the standard of review, you're going to lose your challenge. That's just the way it works almost all of the time. Everything else is window dressing. By the same token, once the court says strict scrutiny is the standard, you're almost always going to win.

J-Lon--

Romer and Lawrence were both decided on rational basis; as, apparently, was the pro-gay marriage Massachusetts decision. It's not an automatic loser, although, obviously, getting suspect class would have been nice (and seems to this lay reader, at least, eminently plausible).

See my comment in the other thread on Romer.

http://www.thestranger.com/blog/2006/07/my_date_with_justice.php

That case is really really different on the facts than this one. The level of restiction proposed was much more draconian. I think that's what allowed the Court to credibly overturn that Amendment on Rational Basis grounds.

I don't know enough about the specifics of the Massachusetts Constitution as compared to the Washington Constitution, to comment on the Mass case. Perhaps they just decided to go the other way and did. Perhaps the language of the Mass Constitution gave the court firmer ground to justify that decision.

I'm not saying the Washington court couldn't have justified its decision on RB grounds. Four of the justicies tried to do that, yes?

But typically, it just doesn't come out that way.

As much I don't like the outcome here, I still think that in general this is how it should be. Judges have very long tenures. Many of them are not elected, and whatever small measure of legitimacy they have as impartial umpires of the system would be eroded if they got too involved in digging into the specific rationales for legislation.

I guess my point is that in matters like this, one has to try and think about how certain approaches may have unexpected consequences for the system down the line. I talked more about that in my other comment too.

Yeah, I read your other post (which is great), though I was going in reverse chronological order, so I saw it after I posted here. Clearly the plaintiffs should have—if they actually wanted to argue suspect class—done a much more thorough job addressing each of the points defining suspect class. Madsen went out of her way to say that the Court wasn't given any evidence regarding immutability, which seems like both a ding on the plaintiffs and an opening for subsequent litigation down the line.

Conversely, though, it seems to me that if the dissent wanted to acknowledge suspect class (most of their comments on this possibility are buried in the footnotes), they shouldn't have stopped at the right of review on rational basis alone.

Finally, I do think that there is a good argument that DOMA fails a rational basis test. The line quoted from Romer in the majority opinion says Amendment 2 "fails, even defies" such a test. Couldn't DOMA fail, even if it doesn't defy, that test? There is not rational relation between encouraging procreation and banning gay marriage. DOMA has no bearing on the alleged state interest. It just doesn't compute.

Now we get to the really ironic part. The recent challenges to state marriage laws that discriminate were targeted to avoid federal questions. That is, the gay rights groups that have brought them have systematically sought to exclude federal questions from their cases on the assumption that federal courts -- specifically the Circuits and the Supreme Court -- would be less receptive to these kinds of claims than certain enlightened state courts.

In the wake of Roemer v. Evans and Lawrence v. Texas and their application of rational basis review to strike down discriminatory laws, it is looking like gay rights groups have miscalculated massively.

Why? The laws at issue in Roemer and Lawrence were struck down applying a rational basis test. Remember that rational basis analysis merely means that there is some rational relationship between the law and a legitimate government purpose for the law. The government's discrimination doesn't have to be a complete -- or even effective -- response to the legitimate purpose. There just has to be a rational connection between the two.

The heart of the question with respect to same-sex marriage, applying rational basis review, is whether there is any rational basis for believeing that the state can deprive same-sex couples the rights it affords to opposite-sex couples. This usually comes down to an anlysis of procreation and child rearing.

The procreation analysis starts with the proposition that it is more likely that opposite-sex couples will have children, so the state can provide benefits to opposite-sex couples in order to encourage procreation. In other words: an incentive to be straight rather than gay. The problem is that people don't exist in an open pool of ambiguous sexuality, choosing their sexual orientation (even remotely)on the basis of whether the state offers marriage benefits. And there is no basis to believe that the *exclusion* of same-sex couples from marriage has any effect at all on the incidence of opposite-sex couples procreating. In other words, there is no rational connection between people choosing to enter opposite-sex as opposed to same-sex unions because of state benefits. So, no rational basis (as the federal courts apply it) here.

Now to child rearing. The argument is that children benefit from being in two-parent families with their biological parents, as opposed to other living arrangements. Opposite-sex couples are more likely to consist of the biological parents of their offspring. Same-sex couples are not. So the government -- allegedly -- can create benefits for living arrangements (marriage) that involve opposite-sex couples. The problem is that there is no connection to this and the *exclusion* of same-sex couples from marriage rights. You'd have to believe that there was (again) some sort of "law of conservation of marriages" and that with the creation of same-sex marriages, you'd lose straight marriages. You'd also have to believe that children of gay parents in *straight* marriages thirve as much as children of straight parents in straight marriages. Neither of these is adequate. They are either based on bias or are simply irrational.

Remember that there is still a 5-4 majority on the Supreme Court that supports Roemer and Lawrence. That may change if Kennedy, Ginsburg, Stevens, Breyer or Souter leaves the Court. But at least for the moment, gay rights groups have to face the possibility that this battle would have been more easily won, if framed as a federal question.

Disclosure: I'm gay. I'm a JD. I got married to my husband in Vancouver (BC) on July 25, 2003.

To the person who distinguished Roemer on the basis of the "draconian" nature of the discrimination worked there:

Obviously Roemer was draconian. But Lawrence merely involved, as Scalia pointed out in his dissent, the right of the state to criminalize conduct. I suspect that if Lawrence stands, then marriage laws cannot stand.

(In fact, that was *exactly* the pitch of Scalia's dissent).

To the people who are taking the plaintiffs to task for failing to push the "suspect class" argument, bear in mind:

The US Supreme Court has refused to extend suspect class status to sexual orientation. Of course, that doesn't preclude a state court from finding that homosexuals are a suspect class, but it does mean that a state court would have to go out on a limb to do it.

No the crime here (as in the NY decision), is that the Washington marraige law fails any level judicial scrutiny, and yet the court refused to strike it down.

The marriage law restricts a fundamental right (the right to marry) in a way that plainly is not narrowly tailored to further any compelling state interest. It restricts the right to marry on the basis of the gender of the persons seeking to marry (a restriction that triggers "intermediate scrutiny" in the federal system) because the state has idenified no important interest to which the restriction based on gender is substantially related. And as clearly discussed above it fails plain old vanilla rational basis review.

The crime here is that the Washington Supreme Court (as did the NY Court of Appeals) twisted and perverted its own consistent, long-standing jurisprudence against discrimination in order to prevent gays and lesbians from marrying in Washington.

It is a bigoted and perverted decison, and the justices who reached it should be ashamed. They have failed their oaths of office and their duties as judges to apply the law without prejudice.

Jonathan:

That's all well and good about the court. But obviously, DOMA is much more narrowly tailored than say Amendment 2 in Roemer. So it's easier to justify it on rational basis grounds.

As I've said before, I'm very sympathetic. It's messed up. But it's not particularly surprising.

The court in Massachusetts had a majority willing to make that leap. That or the Mass constitution and related precendent allowed them more latitude to do so.

It's hard to say, and I'm not deep enough into that decision to analyze it effectively. Perhaps it is as simple as seeing the two decisions as mirror images of one and other, where one vote is really all that separates the outcome.

But that sort of situation is also a reality that must be considered.

Am I correct in my memory that the make up of the US. S.Ct has changed since Lawrence, making it even less likely that this court would be sympathetic to overturning this sort of law? I'm guessing yes.

No, it seems like any progress on this issue is going to have to happen as a part of the political process, at least for the foreseeable future.

Probably the best thing we can do is what Savage has been advocating, swallow it and start the slow process of getting some of these nut jobs out of office, even if it means replacing them with less than ideal folks.

Maybe I'm oversimplifying but it really bums me out that 97,000 Nader voters in Florida (and a proportionate amount throughout the country) kind of helped set in motion so much of the bad stuff we find ourselves dealing with right now.

I'm sure things would still be a mess if Gore was president. But Roberts and Alito likely wouldn't be on the Supreme Court, and the budget would probably be balanced too.

Imagine all the good things that could flow out of those two changes in the historical landscape.

But I digress.

J-Lon: I love you. You have the dispassionate distance I have needed to rise above my anger and depression. I know you are sympathetic, and more knowledgable than I in matters legal. It's fucked up, but not so hopelessly fucked up as I imagine. The decision was wrong, but perhaps not quite as one-sidedly wrong as Plessy v. Ferguson, because of the reasonable dissents (as opposed to Harlan's lone dissent in PvF). I can move on to the next stage. Thank you for your posts.