We have a long discussion available, here and here, that explains exactly what happened in Massachusetts a few weeks ago, but the short version is something like this: a series of Plaintiffs, including private persons and the State of Massachusetts, sued the Federal Government, alleging that DOMA violates the Constitution.
Judge Joseph Tauro, of the District of Massachusetts, ruled in two rulings, released on the same day, that DOMA does indeed fail Constitutional muster, but he added a rather unusual twist to the ruling, and to explain that twist, we now need to talk about the concepts of “strict scrutiny” and “rational basis”.
It works like this: according to the Supreme Court, some rights are more “fundamental” than others. If a government seeks to intrude upon one of these fundamental rights, they need a very good reason…one that’s so good, in fact, that it can survive the “strict scrutiny” of an examining Court.
Marriage for the purpose of procreation has already been established as a fundamental right by the Supreme Court in the 1967 ruling Loving v Virginia; nobody’s ever really specifically addressed the question of whether those who do not intend to have children have that same fundamental right to marriage.
Other rights are considered less fundamental; governments can intrude upon those “liberty interests” if the intrusion:
“…is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]… …As such, a law must fail rational basis review where the “purported justifications…[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects…”
That intrusion is far easier to justify under this “rational basis” standard than it is under strict scrutiny.
So here’s the twist: in the Massachusetts cases, Plaintiffs argued that DOMA failed the strict scrutiny test-and if marriage without procreation is considered to be a fundamental right, then the Plaintiffs should prevail, and DOMA should be ruled unconstitutional.
But the Judge ignored that argument.
Instead, he analyzed the case from a rational basis point of view-and even under that far less restrictive standard, he ruled that there was no rational basis for the existence of DOMA. In fact, during rational basis review the Defendant’s attorneys, or even the Judge, can invent their own “rational bases” for the law, during the trial, and apply those to the argument, and even with all that help nobody could figure out any reason for DOMA to exist-except for the possibility that a majority of the Congress at the time just didn’t like gay people.
Again, from Tauro’s opinion in Gill v Office of Personnel Management:
“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it…
…As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”
And that’s what I want you to be looking for today: does the opinion from California look beyond strict scrutiny and analyze this case under rational basis review-and if they do, will the challenge to Prop 8 be upheld, even under a standard that is easier to defend?
If Prop 8 fails, even under rational basis, it’s going to be a lot tougher for the Supreme Court, who we assume will eventually be getting this case, to justify keeping the law alive. That’s because they would presumably have to find some rational basis of their own to assign to the law, which, so far, has proven to be rather a tough thing to do.
There’s still a few hours to wait, so go grab a coffee, settle back, and wait for the fun…but it will indeed be a big legal deal, especially if a rational basis analysis is applied, and Prop 8 still fails.
…between 4-6 pm eastern time.
The coverage on TPM says that this judge found Prop 8 to fail the “rational basis” test. On to the Supreme Court, I guess…
…but you can add to that that he also said prop 8 failed strict scrutiny analysis, which is sort of a “win-win-win” for the plaintiffs.
I am really happy that this was a judicially minimalistic decision that stuck to the core principles of the due process clause inherit in the 14th Amendment and really iterated that the court is not acting as an agent of social change, but rather as a defender of basic freedoms to due process and equal treatment at the hands of the state as enshrined in the Constitution. Additionally the judge concluded that the proposition failed the rational basis test-the lowest form of constitutional muster. Hopefully advocates of traditional marriage will understand that there is no rational basis for the state enforcing their preferred code of morality upon the populace. As a practicing Catholic I respect and defend the traditional Christian understanding of marriage, but this understanding has to be confined to the various religious and their respective flocks, it cannot be enforced by the state. The Constitution is neutral on questions of morality, but certainly does have a say on questions of basic fairness and equality. It would be pretty hard for an intellectually consistent judicial conservative to defend Proposition 8 as anything other than a power grab by an activist majority against the rights of a minority, things they typically frown upon. In fact Ted Olsen, one of the lead plaintiffs is an ardent originalist, Fed Soc member, and once a leading candidate under Bush II for a Supreme Court seat. His arguments are an embodiment of judicial restraint, and in my view, the Robert Court would be irresponsibly activist in imposing its own value system upon the populace if it decided against gay marriage. Churches are free to marry whom they please, the state has to marry everyone. Its as simple as that.
…i would also note the similarity in reasoning between the doma decisions here in mass and the prop 8 ruling, as in all three cases the judge could not find a rational basis–nor could one be “developed” for consideration at trial.
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p>i would suggest that it is going to be a challenge for the supremes to find such a rational basis–but it may be that the “go slow” rational basis argument is the one that is the easiest to overturn on appeal, and i would keep a close eye on how that argument fares on appeal.
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p>we have more today from the ruling; this time an examination of tactics used by the prop 8 proponents.