More Links on the Prop 8 Appeal
A few interesting things to share:
A post on why marriage bans are sex discrimination and thus subject to intermediate scrutiny (must further an important government interest in a way that is substantially related to that interest). The argument is logically rock solid. If two people are in court and changing the gender of one of those people changes the decision, the law that effects that change discriminates based on gender and must meet the standards of intermediate scrutiny, period (regardless of whether the law disadvantages one gender or another, regardless of whether the effect of the discrimination is somehow symmetrical or balanced). On the other hand, that argument will be ignored because it seems to be a technicality, the real effect of such laws is to discriminate between homosexuals and heterosexuals, not men and women.
A post on what counts as rational basis in the context of such laws. The big question, does rebuking "activist judges" count as a rational basis? Commenter Joe hits the important point in his response:The means of "rebuking" matters. Justice Stevens in Carey v. Population Services:
Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate.
(If rebuking the judiciary is a rational basis (as pointed out by another commenter), the test is pretty meaningless, since it now means only that a discriminatory law has to be passed twice.)
A very interesting op-ed on the case in the context of Lawrence v. Texas, arguing that Prop 8 and the "homosexual conduct law" overturned in Lawrence fail the rational basis test similarly, in the context of a transformed legal order (in Texas, sweeping reform of sexual conduct laws that struck many restrictions from the books the very same year the law overturned in Lawrence was passed; in California, a transformed system of family law that grants homosexuals the full system of marriage rights and obligations sans the word "marriage"). The rational basis in question is not for denying gays marriage, but why just gays, why just "marriage"?
Finally, an interesting post on Kennedy's Ratchet (referring to Justice Kennedy's opinion in Roemer cited in the recent ruling). The author of the post speculates that SCOTUS could uphold the very narrow version of the ruling from the appeal, where states would not be forced to grant marriage rights to homosexuals, but would not be able to pass laws that take (just) those rights away once granted.
A post on why marriage bans are sex discrimination and thus subject to intermediate scrutiny (must further an important government interest in a way that is substantially related to that interest). The argument is logically rock solid. If two people are in court and changing the gender of one of those people changes the decision, the law that effects that change discriminates based on gender and must meet the standards of intermediate scrutiny, period (regardless of whether the law disadvantages one gender or another, regardless of whether the effect of the discrimination is somehow symmetrical or balanced). On the other hand, that argument will be ignored because it seems to be a technicality, the real effect of such laws is to discriminate between homosexuals and heterosexuals, not men and women.
A post on what counts as rational basis in the context of such laws. The big question, does rebuking "activist judges" count as a rational basis? Commenter Joe hits the important point in his response:The means of "rebuking" matters. Justice Stevens in Carey v. Population Services:
Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate.
(If rebuking the judiciary is a rational basis (as pointed out by another commenter), the test is pretty meaningless, since it now means only that a discriminatory law has to be passed twice.)
A very interesting op-ed on the case in the context of Lawrence v. Texas, arguing that Prop 8 and the "homosexual conduct law" overturned in Lawrence fail the rational basis test similarly, in the context of a transformed legal order (in Texas, sweeping reform of sexual conduct laws that struck many restrictions from the books the very same year the law overturned in Lawrence was passed; in California, a transformed system of family law that grants homosexuals the full system of marriage rights and obligations sans the word "marriage"). The rational basis in question is not for denying gays marriage, but why just gays, why just "marriage"?
Finally, an interesting post on Kennedy's Ratchet (referring to Justice Kennedy's opinion in Roemer cited in the recent ruling). The author of the post speculates that SCOTUS could uphold the very narrow version of the ruling from the appeal, where states would not be forced to grant marriage rights to homosexuals, but would not be able to pass laws that take (just) those rights away once granted.