Gay Marriage Throwdown

Ok, so here's my challenge to my friends that oppose the recent Perry v. Schwarzenegger proposition 8 ruling. What arguments do you have against this ruling? Let me set some ground rules here.

1. This is a legal case, in a US district court. So from that perspective, appeals to biblical authority aren't going to hold any weight, much as they don't in a US civil rights case.

2. This case was decided on (broadly speaking) two constitutional law provisions, so I'm looking for arguments that refute the constitutional law conclusions that were made. Broadly speaking, they are:

A. Equal protection. A law that seeks to enforce different standards against different groups must have a basis in law. There are three possible standards of review (yes, I'm paraphrasing a bit, in part):

i. Rational basis review, if the groups are not 'protected classes'. If I want to pass a law making people that skateboard automatic loiterers, and they challenge on equal protection grounds, that's going to trigger rational basis. This means that you have to demonstrate that the discrimination has a rational purpose to further a legitimate state end.

ii. "Heightened protection". If you discriminate against women, you have to do a bit better than show a rational basis for it; you need to show a compelling reason to further a legitimate state end.

iii. "Strict scrutiny". If you're discriminating against a protected class, you have to show that it's the only real way to advance a compelling state interest. Note that judge Graham made findings in all three situations, so feel free to argue for which of these three ought to apply, and why.

B. Due Process. Given that marriage is a fundamental right, what compelling reason does the state have in telling who they can or cannot marry? Bear in mind there is existing case law. Underaged marriage? Compelling, because underage people can't consent (parental consent can circumvent in some states). Incest? Compelling, because of public health reasons to avoid demonstrated genetic problems.

Adding to the problems for people against the decision is that the Court made extensive findings on many of the supposed reasons to satisfy rational basis review, and found them uncompelling. For example, the "think of the children" argument fails when peer-reviewed studies show that children who are raised by same-sex couples do as well (better, actually) than children raised by heterosexual couples. Also, a rational basis has been held to NOT include "because a majority of voters say so". That's not new law, it dates back to the Romer decision from 1996.

So let's hear it: what are the arguments against this decision? What rational reason does a state have to restrict marriage to heterosexual couples given the bounds of a legal case? A big plus would be if commentators would actually read the decision, linked above, so it's not just a big "well, this argument was considered and rejected" fest. If you did read it and think the argument shouldn't have been rejected, that's totally fair game, but let's be a bit smarter than the talking points and actually engage on the substance. I read the whole thing, and so can you!


Comments are open!