(no subject)

[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?

Comments

[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.

[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.