Politics The Rational Basis Dodge
I missed this yesterday, but over in Slate there’s a gay marriage must-read by super-sharp legal writer Dahlia Lithwick. In her piece, she tears apart the “rational basis” dance that the Washington State Supreme Court (and others) have been engaging in when ruling on the constitutionality of gay marriage bans.
Her succinct summary of the Washington State Supreme Court’s logic: “Only if the ban was enacted by insane people can it fail constitutional review.”
The [Washington] court refuses to take seriously its obligation to engage in rational review by repeating, as if sinking deeper and deeper into a state of yogic meditation, that, “at the risk of sounding monotonous, we repeat that the rational basis standard is extremely deferential.”Even the most deferential review should grapple with whether banning gay marriage really encourages straight marriage; whether there is something about marriage that magically lures heterosexual parents into its grasp—something that would evaporate if it were also extended to gay parents. Even deferential review that was also deaf, dumb, and blind would do more than just assert that gay marriage is illegal because kids “thrive” in straight homes. That claim is not just slightly over- or underinclusive, as the majority would have it. It’s nonresponsive. Or, as the dissenters put it, better than I have: “denying same-sex couples the right to marry has no prospect of furthering any of those interests.”
To get to a just answer on the question of gay marriage one need not—and perhaps should not—go as far as the Massachusetts court went when it said that, “The history of constitutional law is the story of the extension of constitutional rights and protections to people once ignored or excluded.” It would have been enough for the Washington justices to say that when irrational laws are justified with irrational reasons, the courts should be brave enough to label them as such.
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.