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.
no subject
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.