2CA Strikes Down DOMA
Yet another conservative Republican judge has found Section 3 of DOMA unconstitutional.
To add briefly to what I wrote at the Prospect, the precedent Jacobs’s opinion heavily relies on has a great concurrence by Justice Stevens, in which he points out that the Court’s attempt to carve classifications into rigid categories for equal protection purposes 1)doesn’t really make sense on its face, and 2)doesn’t effectively describe that Court’s actual jurisprudence. Marshall’s concurrence/dissent also does a good job of explaining why the Court’s assertion that it wasn’t applying “heightened scrutiny” to the mental retardation classifications isn’t credible. The current state of sexual orientation and equal protection, in which the Court has essentially tried to define and apply multiple types of “rational basis” review, is a perfect illustration of all these points.
I agree Kennedy very well might be more sympathetic with the other old conservative (1CA) writer and not use heightened scrutiny. Brown itself was less blunt in overturning Plessy. Whatever works.
Two circuits striking down part of a federal law should warrant USSC review more than the Prop 8 case. I wonder how the D.C. SSM law is doing. Is there a court case there?
There was and the anti-marriage people lost. The anti-marriage people tried to have it submitted to a ballot referendum but lost all the way up to the Supreme Court.
http://www.scotusblog.com/2010/03/d-c-same-sex-marriages-allowed/
How about a DOMA case?
To hell with heightened scrutiny–DOMA has no rational basis whatever.
Rational basis scrutiny doesn’t mean what you think it means.
Rational basis review means you can do whatever you want, even if it doesn’t make any sense except as a political payout.
If the Minnesota legislature passes a law mandating the use of paper milk cartons even though styrafoam cartons are proven in court to be cheaper, better for the environment, etc etc, and this totally fucks the styrofoam carton manufacturers and helps the paper carton manufacturers, that is enough for rational basis.
Now, the court will not SAY that this is what rational basis review means or does. But that is how it works in practice.
IOW, there’s no rational basis for calling rational basis rational basis?
Somewhere or another I read a detailed account of the actual machinations behind the enactment of the Filled Milk Act at bar in Carolene Products. As I recall it was functionally exactly like your hypo.
Or Julian’s hypo I should say
Yup. This is probably the article you’re thinking about:
Geoffrey P. Miller, The True Story of Carolene Products, 1987 Supreme Court Review 397.
That was it. As I recall it was reprinted in the casebook used in, I believe, the jurisprudence class I took. Fascinating read. Would recommend!
How it “works in practice” is that when certain classes are involved (like the mentally retarded or even hippies), the courts say they are using the same standard as when regulations of eyeglasses are involved, but they don’t.
In effect, economic type regulations are “rational” more often than various other types of regulations. And, it has to be a legitimate rational basis. Certain things are possibly “rational,” but violate the rules. Like torture.
“Rational basis” means “plausible deniability” for the purposes of equal protection cases. So while it sounds better to have the outcome be, “There’s no rational basis for that!” it’s actually better to have a judge say, “That’s a kind of distinction that the 14th Amendment forbids!”
The hypo I posited is taken from a real case, Minnesota v. Clover Leaf Creamery Co., in which SCOTUS upheld the stupid law.
The reason it works this way is that every law imaginable treats some group unequally. Laws against murder discriminate against murderers, laws giving tax breaks to jugglers discriminate against nonjugglers.
There is no principled way to sort out “rational laws” from “irrational ones.” All we can do is decide if there are any groups we will forbid discrimination against. Most laws that same totally at odds with their stated purpose (if they have a stated purpose at all) are, of course, disingenuous: they are actually just intended to pay off some constituency.
But that’s also the whole point of politics, essentially. How is a court to decide when a constituency should NOT get its way legislatively? That’s antidemocratic.
So the way rational basis review has to work is that it gives everything a thumbs up, EXCEPT when the court suspects that a special group of people is being treated unfairly.
Who gets to qualify as special evolves over time. Everyone has always agreed that african-americans are special, they are the whole reason the 14th Amendment was passed. Then women were recognized as special, EXCEPT in cases where the court thought there was a real biological difference that legislatures should be allowed to recognize and treat differently (i.e. pregnancy). Now gays, sort of. In one case they toyed with making retarded people special but seem to have decided not to do that because, most likely, the court wants legislatures to be able to pass laws that are unfairly protective of the retarded.
It’s important to understand that while the 14th Amendment was clearly intended to give blacks equal civil rights, “civil rights” did not mean back then what they do today. Today we think of “civil rights” as comprising basically everything important, right to vote, right to be free from discriminatory enforcement of laws, right to no government segregation, etc etc. In the 19th century around reconstruction, “civil rights” meant a discrete set of rights distinct from “political rights” (which included voting) and “social rights” (which included right to sit in any section of the restaurant).
Ratifiers of the 14th amendment pretty clearly only intended to endow black people with civil rights.
“Civil rights” were a limited class of rights but something like protection marriage was in the minds of many one such right. Slavery denied certain things like free contract and control over marriage. Miscegenation laws were understood not to violate it though. Still, not only blacks were protected by the 14A. The 14A protected rights of “persons” including, e.g., white Republicans mistreated by the South. When specific persons were at issue, they said so: see, e.g., 14A, sec. 2 or the 15A. The courts before and after the Civil War didn’t have an “anything go” stance on classifications. The “whole point” of republican limited government in this country.
So, if Minnesota did pass a tax on jugglers (or some other silly law) that’s it? No judicial action possible even though a group is discriminated against because there isn’t a history to it and who is the court to say otherwise? Or is it something that the courts could rule on, depending on the judge’s predilection?
Just a non-lawyer curious to read more interesting comments and to better understand the subject.
The “silly law” has to be illegitimate somehow under the Constitution. The government has the power to tax some professions or things over others generally speaking. OTOH, if blue eyed people weren’t allowed to juggle, it might be hard to justify the law, even though its an “economic regulation.”
I think they could not tax jugglers.
They could tax:
Juggling, juggling licenses, juggling income, sale of juggling equipment, ownership of juggling equipment etc.
If a state tried to collect money from someone just because they had a specific capacity to perform an action, that might be unconstitutional.