stevenehrbar: (Default)
[personal profile] stevenehrbar
Not that I have any objection to the result of the case, but has anybody tried projecting the ban on laws of moral disapproval as a general principle?

The item that comes first to mind is animal cruelty laws.  However much one might hate the idea of, say, microwaving live cats to death, what's the state's rational interest in preventing such behavior, under the new standard?

Date: 2010-08-06 08:38 pm (UTC)
From: [identity profile] leticia.livejournal.com
Mistreated animals are more likely to cause harm to people.

(I'm sure I could come up with others, but that's a off the top of my head start.)
Edited Date: 2010-08-06 08:39 pm (UTC)

Date: 2010-08-06 09:14 pm (UTC)
archangelbeth: An anthropomorphic feline face, with feathered wing ears, and glasses, in shades of gray. (Default)
From: [personal profile] archangelbeth
That one's actually easy -- there is a link between cruelty to animals and cruelty to children or other humans (I can dig it up, I'm sure, with a bit of googling). It behooves the state to place hurdles in front of anything that might increase the number of people in jails.

Date: 2010-08-06 10:57 pm (UTC)
From: [identity profile] stevenehrbar.livejournal.com
Mmm. The trouble is, the conclusion then is that this judge made an incorrect ruling when he said there was no rational basis for the enactment. Denying same-sex marriage helps stigmatize male homosexuality and associated acts, and a stigma against it discourages male bisexuals from engaging in such acts. Since, in the U.S., there is definitely a statistical link between male-male sexual contact and HIV infection rates, and it is undoubtedly a rational state interest to take actions that reduce the number of persons infected with HIV, the rational basis test does, in fact, support a ban on same-sex marriage.

That doesn't mean the result of the judgment can't survive; there are several other arguments made in the decision. But I'd expect the decision to be quite narrowed as the results of the appeals. It's reaching too wide to stand as written.

Of course, since appeal was inevitable anyway, maybe a wide-as-possible decision was best, since it is most likely to leave something standing after review.

Date: 2010-08-06 11:50 pm (UTC)
From: [identity profile] leticia.livejournal.com
Except there are other measures than reducing homosexual contact that reduce the spread of HIV as much more more.

And a statistical link is different than a casual link, and second, I would question your statistics without actually seeing them, since I sincerely doubt homosexual sex is down in the past decade and HIV infection rates -are-.

Date: 2010-08-07 01:06 am (UTC)
From: [identity profile] stevenehrbar.livejournal.com
The rational basis test traditionally doesn't require that you use the best method, or all methods better than the one you're using, or that you can prove that your method works; you need merely show that it can be reasonably believed that your method has an effect that would serve a legitimate end. And you don't even have to show the end was what actually motivated the action in the first place, just that the action can serve the end.

It's a very easy test, which is why the assertion by the judge that it wasn't met is either going to have very wide consequences, or get overturned.

The judge's decision is much more strongly defensible on, say, the grounds that gender is a quasi-suspect class under the law, and that intermediate scrutiny (much more rigorous than rational basis) applies to the question of whether women but not men can be prohibited from marrying women.

Date: 2010-08-07 01:11 am (UTC)
From: [identity profile] leticia.livejournal.com
Frankly, you're reading things into it that aren't there, and I would have to wonder your motives for doing it. Regardless, I doubt it's worth debating with you since I'm of the opinion your basic premise is flawed. He very much did care about whether the stated interests had basis in fact, among other things, but there's far, far, more to it than that.

Date: 2010-08-07 02:16 am (UTC)
From: [identity profile] stevenehrbar.livejournal.com
The judge read the law broadly. Broad readings of the law have broad consequences, well beyond the question decided in any single case. See, for example, Judge Walker's citing Plyler v Doe, a case involving illegal immigrants, as precedent in this case. Do you think a Supreme Court that, four years after Plyler v. Doe, upheld laws against sodomy, expected that Plyler v. Doe would later be read to support requiring state recognition of same-sex marriage? "Reading things into it that aren't there" is how judicial precedent is applied, and thus quite necessary to understand the consequences of a decision.

If the final conclusion after the appeals really is that there was no rational basis for Proposition 8, then the rational basis test apparently just got toughened, and that will have consequences for all sorts of lawsuits in areas completely unrelated to gay rights. If the rational basis conclusion is overturned but the equivalence between discrimination on the basis of orientation is the same as discrimination on the basis of sex is upheld, then there's a different set of consequences, which will (for example) force the military to reduce (though not necessarily eliminate) its discrimination against homosexuals, but won't affect legislation regarding animal cruelty or financial regulation in the slightest. If the final conclusion instead is overturning Proposition 8 entirely on the basis of strict scrutiny using the due process clause and a fundamental right to marry, then there won't be many changes to the law beyond allowing same-sex marriage, because, for example, there's no fundamental right to be part of the military. In fact, a decision that upholds the strict scrutiny alone might be cited to preserve "Don't Ask, Don't Tell" against legal challenges.

Date: 2010-08-06 11:56 pm (UTC)
archangelbeth: An anthropomorphic feline face, with feathered wing ears, and glasses, in shades of gray. (Default)
From: [personal profile] archangelbeth
HIV is spread all over the place by now -- male-male vectors may or may not be higher than male-female ones, but I don't think they're much higher.

Besides, allowing gay men to marry could potentially stigmatize male-male sex outside of marriage, reducing casual encounters, and thus HIV propagation.

Date: 2010-08-07 01:09 am (UTC)
From: [identity profile] stevenehrbar.livejournal.com
Yeah, but your arguments (cogent as they are) are applying higher scrutiny than "rational basis" scrutiny.

Date: 2010-08-07 03:46 am (UTC)
From: [identity profile] stevenehrbar.livejournal.com
In detail:

From Heller v. Doe, 1993:
A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, , and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.”
So, if anyone can come up with any argument anywhere that could conceivably relate a ban on same-sex marriage to a government interest, and that connection cannot be disproved, the rational basis test is passed, even with no evidence supporting the argument. I expect some amicus curiae brief to spam enough arguments on an appeal of Judge Walker's decision that at least one of them passes this very loose standard.

If Walker is upheld on his rational basis ruling, it would seem to require a tightening of the "rational basis" standard beyond how Justice Kennedy presented it in 1993. I don't think Justice Kennedy will go that far, when there are tougher standards he can apply, but he might. If he does, that would then change a lot of other law, with consequences that are not easy to foresee.

Date: 2010-08-07 06:50 pm (UTC)
archangelbeth: An anthropomorphic feline face, with feathered wing ears, and glasses, in shades of gray. (Default)
From: [personal profile] archangelbeth
Well, when questioned on their assertions that Gay Marriage Will Do Bad Things, one proponent of Prop8 said "I don't know" and the other said, "I read it on the internet."

Um. Yeahhhhh... You're supposed to have your Google-searches done before you walk into the courtroom. Or at least whip out a smartphone and ask for a moment to look things up.

Meanwhile, there are 18K married couples of the same gender, who got married before Prop8, who were trundling along and disproving that they were terribly disruptive. (Or, if they were disruptive, that the proponents of Prop8 were unable to dig up any dirt about them to bring into the courtroom.)

Meanwhile, the lack of same-sex marriage was promoting... Sex outside of marriage and child-rearing outside of marriage, the very things that the people in question professed to want to reduce. It was also making for More Paperwork (marriage certificates and domestic partnership certificates), which does have an impact on the state's bottom line, and therefore it was within the state's interests to repeal the proposition. (Not to mention money on same-sex weddings was not being spent in the state, and -- because same-sex partners were often not legally married, the insurance burden was being placed on the state and not one partner or the other's work insurance.)

Basically, from a purely monetary standpoint, Proposition 8 was only harming the State of California, and with no provable benefit.

(http://kathrynt.livejournal.com/550632.html is a very interesting thing to read, regarding the Findings of Fact, BTW.)

I'd figure that if one wanted to repeal laws against animal cruelty, one would have to go up against the various well-accepted links between cruelty to animals, and violence/cruelty towards humans. (Google animal cruelty facts child abuse site:gov for various governmental sites' beliefs on this. http://www.ncbi.nlm.nih.gov/pubmed/16600374 is a particularly good site. http://ag.arkansas.gov/newsroom/index.php?do:newsDetail=1&news_id=205 is another.)

Furthermore... what ban on same-sex marriage would make sense that has not already been tested and found wanting in the case of inter-racial marriage, or coverture? Bans on inter-racial marriage have already been found to violate the United States' Constitution. Judge Walker -- aware that the Federal Government had once overturned California's inter-racial marriage ban -- may simply have wished to reduce the costs for domestic partnership papers early. A clear benefit for the state's budget!

It's still too early to know what's going to happen with the military's Don't Ask, Don't Tell thing. I suspect that one's going to linger on for another generation (since joining the military is not a fundamental right, as you mention above), until a critical mass of people are not squicked by the idea that someone of their own gender might find them attractive.

Date: 2010-08-07 08:30 pm (UTC)
From: [identity profile] stevenehrbar.livejournal.com
Legally, the difference between same sex marriage and interracial marriage is that race is an officially-designated "suspect class", so the argument for a racial discrimination always must beat the "strict scrutiny" standard, whether or not the court has recognized a fundamental right at stake. Sexual orientation is not currently established in precedent as a suspect class (like race), or a quasi-suspect one (like sex), so laws can currently discriminate against gays with mere "rational basis" justification if a fundamental right is not at stake.

Obviously, that doesn't make the arguments for discrimination make any sounder than ones on the basis of race from a moral or logical standpoint, but, this case is before courts of law, not courts of morality or logic. If they don't find that marriage is a fundamental right, and they don't find that sexual orientation is a (quasi-)suspect class, all that's left would be rational basis review, and that's easy to beat (even if the pro-Prop 8 was incompetent at the district level).

I think Kennedy is likely to find it's a fundamental right, which would demand strict scrutiny in this case and knock over the marriage ban; however, the Lawrence v. Texas ruling suggested he's reluctant to do so. I can't guess how he'll rule on suspect class status for sexual orientation. And if he decides marriage isn't a fundamental right, orientation isn't a suspect class, and that just one argument presented at the appellate or SC level passes rational basis, Proposition 8 will be back.

One of the arguments made by Scalia will certainly be that moral disapproval alone counts as rational basis, given his defense of that argument in Lawrence v. Texas. That means we're going to see people try to come up with laws where moral disapproval is the only basis for a generally-accepted law, to try to bother Kennedy with the consequences of such a decision. So I was trying to anticipate that argument, in order to find arguments that will pass the rational basis test for keeping the generally-accepted law, but not for keeping Proposition 8.

I liked Leti's "animals that are abused become a danger to humans" argument. X causes Y is a good, solid, hard-to-apply-to-defend-Prop-8 argument.

The problem I had with a "link" as you suggested (as opposed to a cause-and-effect relationship) is that mere correlations are much easier to use to uphold Proposition 8 than cause-and-effect relationships. If a correlation is enough to pass rational basis, you just have to find that something that can be logically chained to same-sex marriage and something undesirable have a correlation, and there you go, you've got it. The sites I found generally indicated that animal abusers were likely to also abuse children (correlation alone, which could just indicate that people who like being cruel are cruel in general), or like your first link there had animal cruelty resulting from human violence (in which case outlawing animal cruelty would have no effect on cruelty to humans).

Your second link, there, though, that's solid. "The proposed legislation will tack on an additional 5 years in prison for anyone convicted of torturing an animal in the presence of a child," presumably since witnessing cruelty to animals has been shown to inspire cruelty in children, that works.

Anyway, I ramble.

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