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“The State Needs A Rational Basis. Well, A Basis.”

[ 66 ] January 29, 2013 |

A couple commenters beat me to it, but the self-paradoically specious argument in defense of marriage discrimination djw makes fun of below was, less than ten years ago, good enough for the New York Court of Appeals:

Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.

Despite my joke in the title, the thing is that this silly “marriage laws are about creating more shotgun marriages” argument does sort of qualify under the traditional “rational basis” standard, which pretty much requires “any reason that can be stated in a reasonably coherent sentence” as opposed to “an arguably good reason.” This is why the traditional rational basis standard is inappropriate to a fundamental rights case like this, and why the allegedly “rational basis” reasoning of Romer wasn’t really. If the courts use a standard with any teeth this farcical justification collapses instantly as a basis for denying a class of people a fundamental right, and remember that the New York courts considered this one of the two best arguments.

Comments (66)

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  1. sharculese says:

    I’ve been without the internet for a couple of days and haven’t had time to really read this, but I’m a bit flabbergasted as to this line of argument.

    W/r/t DOMA, I could see that maybe in a certain case justifying a state ban on gay marriage, but not, well, DOMA.

    W/r/t Prop. 8 it seems like an argument designed to lose. My suspicion is that we’re going to get a narrow ruling on Prop 8 limited by the fact that the only distinguishing feature between marriages and civil unions in CA was the word marriage, and that something like this will do nothing but underscore the frivolity of the proponents’ position.

  2. rea says:

    an important function of marriage is to create more stability and permanence in the relationships

    Just mind-boggling in its folly. You’ve got to have a stable and permanent relationship to make a marriage work; trying to use marriage to make a shaky relationship stable and permanent is a recipe for divorce, not to mention, murder.

    • Vance Maverick says:

      The same argument was made by the right in the debates over the legalization of divorce in Italy, especially leading up to the referendum of 1974. (1974!) I’ve seen a print ad from that period where a sincere-looking older guy is saying “Our marriage was in trouble, but we stuck with it, and I’m glad we made it work.”

    • bradP says:

      You’ve got to have a stable and permanent relationship to make a marriage work; trying to use marriage to make a shaky relationship stable and permanent is a recipe for divorce, not to mention, murder.

      WRONG.

      You only need subservient women, which was likely assumed.

      • Malaclypse says:

        This is one of those occasions where you are completely made of Awesome.

        • bradP says:

          It’s doubtful that that is a comment I would have likely made when I first started frequenting this blog, so give yourself a pat on the back.

        • DrDick says:

          I agree with Mal on this, but would add that you still need that stable and permanent relationship to make the marriage work, even if subservience changes the parameters of what it takes to achieve that.

          • cpinva says:

            i think subservience is assumed, by definition, to result in a stable marriage. until the subservient one is either killed by, or kills the dominent one.

            “even if subservience changes the parameters of what it takes to achieve that.”

            at that point, stability is, of course, lost.

    • mpowell says:

      As far as where the court is concerned, I’d agree with your point. The idea that the financial benefit of marriage will actually encourage people to choose to form more permanent relationships where they would not have done so otherwise is unlikely even at the margin. Such is the silliness of rational basis, imop.

      But the legal protection that marriage provides does make sense for people who want to form long term relationships. Regardless of how healthy a relationship is today, you would not want to rely on that 20 years down the road. So the legal concepts of marriage, child support and alimony create an environment where it is sensible for a both members of a partnership to make decisions as a couple without worrying as much about the personal risk those decisions entail should the marriage end in divorce. Basically, it becomes more reasonable for one partner in the marriage to make career sacrifices for child-raising or geographic locations purposes. And these are hard to avoid, especially in our society. So the legal concept of marriage does help enable the formation of long term relationships, particularly when child-raising is going to be involved. But this purpose would apply equally strongly to same-sex marriages so it would not be a justification for discrimination even under a relaxed rational basis test.

    • DrDick says:

      Marriage, as distinguished from other forms of relationships, is about the assignment of legal and property rights and nothing else.

      • cpinva says:

        true, but other issues are predicated it on it. for example, your filing status, for federal tax return purposes, is dependent on how the state you reside in defines your relationship.

    • L2P says:

      You’ve got to have a stable and permanent relationship to make a marriage work; trying to use marriage to make a shaky relationship stable and permanent is a recipe for divorce, not to mention, murder.

      Although that’s probably true, the legislature probably makes it over rational basis for thinking that maybe, on the margins, there’s a couple of shaky relationships that might form and survive because of getting married for the kids. Maybe the vast majority of couples wouldn’t make it, but if it’s not irrational for the legislature to think that to be the case, they’re done.

      Rational basis doesn’t require a whole hell of a lot. Otherwise governments couldn’t do anything. Is it “rational” to think that giving $1 Billion to an NFL owner will help your city? No, that’s crazy talk. We all know that’s a money loser for the city. But it survives rational basis because the city could think that it might turn out ok.

  3. Michael says:

    The thing about this argument is, it’s hard to imagine a situation where the Supreme Court decides that Prop 8 or DOMA gets rational basis review, decides all the other bases offered are not legitimate state interests, but upholds because this particular rationale was offered. It’s possible, sure, but hard to imagine. It seems to me that if they get rational basis review, they’ve already won on a number of different rationales.

  4. bradP says:

    So the argument is that marriage has the benefit of inducing accidental parents to get married?

    Wouldn’t it have to be the only meaningful benefit for this to be any sort of argument, no matter how stupid?

  5. Michael says:

    Also, Romer wasn’t “rational basis plus” or “rational basis with teeth,” it was a sui generis sort of decision that declined to decide what standard of review to use at all.

    The 3 common rationales the Court has given for the “any rational basis” standard are that

    (1) Some collective legislative intent is likely incoherent anyway (see, e.g. Palmer v. Thompson; Michael M. v. Sonoma County)

    (2) Legislative intent is unknowable anyway, and courts don’t make legislatures codify their intent (see, e.g., USRR v. Fritz)

    (3) If courts struck down a law because the actual purpose was illegitimate when there are other, legitimate rationales available, then legislatures could just re-enact under the legit rationale anyway (see Palmer v. Thompson again)

    The thing about Romer was that none of those were applicable. Kennedy went out of his way to stress that no other reading was possible other than the law was motivated by bigotry. Direct quote: the law is “inexplicable by anything but animus towards the class it affects.” (emphasis added). So (1) collective intent is not incoherent, because it has to be bigotry; (2) its obviously knowable, because there’s only one possible explanation, and (3) can’t re-enact because there’s only one possible explanation.

    So, Kennedy was, we know what their intent was, we know its the only possible intent because this law in particular is so heinous–it was literally legislating away equal protection for homosexuals!!– and so we can say that “animus towards a class” is never a legitimate state interest and end the discussion at that. If there’s no legit state interest, then it fails rational basis and intermediate scrutiny, so there’s no need for the Court to decide which standard of review is appropriate.

    This isn’t rational basis “plus,” which typically makes the government show a stronger relationship between the means and the (legitimate) end. But not even Prop 8 or DOMA come close to being as heinous as the law in Romer, because denial of monetary benefits is pretty common stuff. See Maher & Harris v. McRae for examples; the gov’t can give benefits to women keep a baby, e.g., even though choosing to end the pregnancy is a constitutionally-protected choice. So its hard to argue that Romer‘s “this-is-beyond-the-pale” analysis extends to a benefits dispute.

    • sharculese says:

      But not even Prop 8 or DOMA come close to being as heinous as the law in Romer, because denial of monetary benefits is pretty common stuff. See Maher & Harris v. McRae for examples; the gov’t can give benefits to women keep a baby, e.g., even though choosing to end the pregnancy is a constitutionally-protected choice. So its hard to argue that Romer‘s “this-is-beyond-the-pale” analysis extends to a benefits dispute.

      If you frame this as being about monetary benefits, then yeah okay. if you frame it as about giving the same dignity and respect to homosexual relationships as heterosexual relationships, really not so much.

    • Joe says:

      DOMA doesn’t only involve “monetary benefits.” State recognition of marriage is now necessary — unlike abortion funding — for a range of benefits, such as spousal immunity in federal prosecutions. You can have an abortion w/o the government paying for it. You can’t have spousal immunity w/o recognition.

      Prop 8 is comparable — the domestic partnerships allowed in CA deny more than “monetary benefits” and marriage licenses alone are necessary for the protected constitutional liberty at stake.

      CA9 also connected Prop 8 to Romer. The two rulings weren’t totally on point but connected enough (as Marty Lederman once noted at Balkanization) to be applicable here. Here too various rights were denied to a specific class, taken away in fact, by a measure only overruled by a state constitutional amendment. The usual legislative process was denied illicitly.

  6. sharculese says:

    But not even Prop 8 or DOMA come close to being as heinous as the law in Romer, because denial of monetary benefits is pretty common stuff. See Maher & Harris v. McRae for examples; the gov’t can give benefits to women keep a baby, e.g., even though choosing to end the pregnancy is a constitutionally-protected choice. So its hard to argue that Romer‘s “this-is-beyond-the-pale” analysis extends to a benefits dispute.

    If you frame this as being about monetary benefits, then yeah okay. if you frame it as about giving the same dignity and respect to homosexual relationships as heterosexual relationships, really not so much.

    • sharculese says:

      Was meant to be a reply to Michael above, please ignore.

    • Michael says:

      Eh, still not convinced. Romer was about literally barring homosexuals from bringing equal protection claims in court. I think closing the courts to a group is, in the eyes of the law, just about the worst thing you can do.

      That being said, I could write for a long time as to why homosexuals deserved intermediate scrutiny and why DOMA and Prop 8 both fail under that standard.

      • Jon says:

        Of course they do. But you’re doin it backwards. First you pick your result and then you pick your standard of review. If you’re ashamed but feel like you want to do it anyway, make it seem strict like the Japanese interment but do it anyway. Other way around? Romerize.

    • L2P says:

      The government can frame it however it wants. That’s the glory of rational basis review, the government picks the purpose it wants to further. As long as the classification is rationally related to the purpose, and the purpose is legitimate, you’re done.

  7. Jon says:

    To those who think writing law school exam answers has anything to do with anything, I salute you a wish I lived in a world that made that kind of sense. Appellate courts do what they want to do, and things aren’t argued so much as relegislated. What Boies and Olson know is that Kennedy wants to write himself into the history books. Maybe they’re right. But diving The True Meaning of rational basis review has nothing to do with this in reality. But it’s nice for maybe humiliating the few peers in politics who have some reverence for the law. That’s about it.

    As someone who sees Lochner, Citizens United, and Bush v. Gore as the rule, and the Warren era as the anomalous exception, I see little reason for the courts to add further layers of bullshit to their exercises of power.

    • Michael says:

      Hey! I think my post was more akin to journal article than law school exam, thank you very much (assuming that was directed at least in part towards me).

      • Jon says:

        Touché. (=

        Anyway, being serious for a minute, it’s just as likely to me that there will be some kind of new and different standard of review invented for these cases.

  8. Crackity Jones says:

    As other commenters have alluded (and the post implies), this case will be won and lost not on the merits of Clement’s repackaging of an old 2005 argument, but on the standard of review. If the Court can be convinced to use intermediate scrutiny (I’ll take out a second mortgage to bet against strict scrutiny being used), Clement loses. Yes, Clement himself! God damn if he isn’t a great appellate advocate, but how is he on the wrong side of everything? Yeesh.

    • Jon says:

      Well, as you can tell from my posts above, I have permanent damage to the soul from a court clerkship from 10 years ago and I am simply not convinced that the idea that a decision of a standard of review will be made independently here or in any other big-time case like this.

      Look, “standards of review” come from a footnote from a case that’s not even 100 years old, that isn’t as frequent a guest itself in casebooks for any reason except that footnote, and then were invented and reinvented and older cases were fit on the proverbial procrustean bed to make this easy system work for people.

      The courts have basically said (more true to the Carolene footnote than the subsequent codification) that where the legislative process is rigged against someone, they’re gonna put their finger on the scale in favor of that group. The most massive rigging ever was against blacks. Indians too, but with less edifice.

      And the Court was right to mostly demur on economic matters for many reasons, but, basically because if you have the other fundamental rights, you can get yer pork. I agree with this demurring, but to me it should simply be because Congress should be supreme because it’s parsecs closer to democratic than the Court, it’s Byzantine rules, it’s gerrymandering, it’s campaign finance, and etc. notwithstanding.

      Once something is enshrined as a constitutional matter, it’s pretty damn permanent. And furthermore, so is the concept. This is why I think liberals are/have been making a bad bet by seeing salvation in this institution that has done more harm than good to liberal causes. If they say there’s a U.S. Constitutional right to gay marriage, great. But then they are going to turn around and not just legislate, but put beyond the legislature, the insane doctrines of corporate speech, personal gun rights, etc.

      The marriage equality movement in 2013 has to give itself a hand and recognize its own success. It’s turned the corner. We’ve all won. It’s all over but the homorepressed crying in the Neoconfederate alternate reality. If the Court makes the coup de grace on this issue, well, then great. I’ll be tickled pink. (Pun intended)

      But I digress.

      tl;dr fuck the Court and the courts.

      • Rarely Posts says:

        But then they are going to turn around and not just legislate, but put beyond the legislature, the insane doctrines of corporate speech, personal gun rights, etc.

        I mostly agree with you, but it bears noting: they are going to turn around and do all of this no matter what. The gay marriage case and the political reaction to it are not going to have any affect on the Court’s eagerness to rig the game in favor of the wealthy.

  9. CJColucci says:

    We could see a split between the Prop 8 and DOMA cases. As Scott says, the argument that marriage is a status a legislature could rationally decide to restrict to mixed-sex couples because of the need for some sort of institutional set-up for raising children, who are a likely consequence of mixed-sex sexual activity but not of same-sex sexual activity, fits within traditional rational-basis review. So if a state wants to restrict marriage that way, it can, and Prop 8 gets upheld. But what rational basis is there for the federal government, which does not regulate marriage as a general matter, and generally treats as married those people the states, which do regulate marriage, say are married, to treat persons recognized by their state as married as not married? Other than determining that marriages aren’t fraudulent for the purpose of preserving the public fisc, or for immigration control, the federal government has no interest rationally advanced by declining to recognize as married people states say are married. So DOMA loses.
    That’s how I’d bet. Kennedy announces the 5-4 decisions of the Court made up of fractured opinions with no cohesive rationale that commands 5 votes.

  10. Jon says:

    Hey anyone wanna stake the over/under on when one of Alito or Thomas’s little Federalist Society Demonoid clerks leaks the story if it’s not going to go their way?

  11. MacCheerful says:

    The theory of rational basis here is that a legislature can look over the population and decide to grant a benefit to one slice of the population, say tax breaks for amusement park operators, that it does not provide to others for any reason that connects an aspect of amusement park operators (e.g. the joy they bring to children) to the benefit. It does not have to be a peculiar aspect, e.g. clowns also bring joy to children but the legislature doesn’t have to give them tax breaks too. (And with respect to the Republican argument here, it would seem true that not all procreation by gays is inherently carefully planned as somewhere in the world today there are two drunk women, a drunk man, and a turkey baster).

    But I still wonder about rationality in this respect. The legislature is not really deciding to give a benefit to one group as a departure from status quo. It is in most cases choosing to pass legislation that for the first time makes clear that which was left ambiguous or to tradition, only mixed gender couples can get married. I.e. before the legislation mixed gender couples can get married. And after the legislation (e.g. Prop 8 or other recent State DOMAS) mixed gender couples can get married. The only difference is that after these laws it is clear gays can’t get married.

    And this rationale doesn’t seem to support that result.

    What am I missing here?

    • MacCheerful says:

      And because there is no edit here, I reply to myself to extend the argument – If for 200 years the government gave tax breaks to children’s entertainers during a time when nobody thought mimes were particularly entertaining and so no mime applied, but Congress then recently passed a law clarifying the tax break only applying to speaking entertainers (apparently in reaction to mimes now claiming a tax break) wouldn’t a rational basis for this new law have to consider a rational basis for now excluding mimes as opposed to a rational basis for benefiting jugglers and magicians?

      • L2P says:

        Nothing, except that it’s virtually impossible not to have a rational basis for a classification under traditional review. It’s only under a heightened rational basis classification, as applied by Kennedy one time, that we’d have a problem.

        • Anonymous says:

          Sure, but under the scenario above, instead of a rational basis for extending marriage to heterosexuals, the court would now be tasked with a rational basis for denying marriage to gays. Even trying to come up with a shred of a reason for that task involves making statements about gays as a group that will be very difficult to do without straying into animus. It would have to find something about gays they don’t share with sterile heterosexuals.

          As I recall, in the Anderson case, Washington State’s Supreme Court decision, there was some back and forth between the dissent and majority on this. The dissent said that the State DOMA was unconstitutional because it excluded gays from an existing privilege instead of extending that privilege to straights. The majority opinion, per C.J. Alexander, harrumphed that a matter of constitutional rights should not be decided simply as a question of how one looks at it. Which may be true but I think counts against his argument, not for it.

          • MacCheerful says:

            “Anonymous”, c’est moi.

          • L2P says:

            You make a fine and clever argument that is very persuasive except under rational basis review. “Rational” doesn’t mean “smart.” It means “related to the goal.”

            So this stupid, mockable reason of “shotgun weddings are the reason for marriage” is, under traditional review, sufficient to show a rational basis. Is promoting long-term, stable relationships a legitimate government purpose? Yes. Does the ability to form a marriage further that purpose? Yes (you don’t need to show scientific accuracy. You can rely on a “just so” story, and this passes the smell test). Can homosexual couples have unplanned pregnancies? Only very rarely, if at all.

            So there is a rational basis for providing this benefit only to heterosexual couples. The “reason” for the benefit is rationally related to your classification, and furthers a legitimate government purpose.

            It’s a stupid reason. It’s almost certainly not going to be very effective. It’s inane. But it’s “rational” within the traditional meaning of the law.

            • MacCheerful says:

              I have had this argument before with other lawyers and I still feel I am missing something.

              I am familiar with the tenuous nature of rational basis review and how it makes it possible for Oklahoma to force people to go to opthamalogists for eye glasses even when optometrists are perfectly capable, and how a court is allowed to come up with any possible conceivable, but legitimate, reason for extending benefits to some parties but not to others.

              My question though is how this applies when the situation is flipped and you are not providing benefits to some parts of the community but not others but, instead, stepping into an existing situation where benefits are (at least potentially) available to all and stating from now on a part of the population won’t get them. (This of course depends on the idea that pre 1996 or so state laws allowed the possibility of same gender marriage on their face, even though actual couples got slapped down whenever they tried)

              I think finding a rational basis for denying a group a benefit is more difficult, and a different argument than finding a rational basis for granting a group a benefit. Honest question, because I really don’t understand, what am I missing here?

        • rea says:

          except that it’s virtually impossible not to have a rational basis for a classification under traditional review.

          The possiblity is there, but rarely do Legislatures act so foolishly, e.g., imposing a tax penalty on mimes in order to discourage armed robbery.

  12. Manta says:

    I don’t think the argument given (silly or not) can justify discrimination against gay people: if the legislature wants to encourage shotgun marriages, it could simply make some narrow provisions to facilitate marriage when the woman is pregnant (e.g.: give money to pregnant women that get married).

    • L2P says:

      You’re applying strict scrutiny. Under rational basis, the government doesn’t need to pick the best, or even better, of several options for acheiving the goal. It’s classification only needs to have a reason that it could support that goal.

      Unless it’s actually counterproductive, it’s probably rational. For example, giving money to pregnant women NOT to get married doesn’t further the purpose of getting more pregnant women into marriages; it’s irrational. But letting pregnant women, and only pregnant women, get married does further that goal, although it’s a stupid and pointless of doing it. I’ll let you draw the inferences you need to support the rational basis standard.

  13. FlipYrWhig says:

    IANAL, but if states have the right to draw up marriage policies as they see fit (as for instance around age limits and consanguinity), why wouldn’t they also have the right to bar interracial marriages? It seems to me that if interracial marriage can’t be banned, then same-sex marriage can’t be banned either, and if the latter can be, then the former can be as well. What makes this claim to “rational basis” any more viable than Virginia’s desire to prohibit interracial marriage?

    • AAB says:

      Laws involving racial classifications get strict scrutiny, not rational basis. It’s a much tougher (in practice, basically impossible) standard to meet.

      • CJColucci says:

        That’s a perfectly correct legal answer, but if anyone asks “why?” the answer really comes down to “just because.” We dress it up better than that, but the justifications have no power to convince someone who does not already see the “just because.” To be clear, I’m not saying this is illegitimate; I’m saying it’s inevitable. When enough of us are sufficiently convinced that there is no better reason to forbid same-sex couples to marry than there is to forbid mixed-race couples to marry, courts will so rule, even if that pisses off some geographically or otherwise isolated opposition. Then we’ll mumble some form of words as if it explans something.

      • FlipYrWhig says:

        Thx for answering!

  14. Joe says:

    At the very least, recent legislation like Prop 8 or DOMA, unlike marriage laws in the days of yore (though they were influenced by outdated ancient views of proper sex roles), clearly has the animus that led the USSC in various cases to warrant a stricter form of “rational basis.” See, e.g., the cases cited by O’Connor in her Lawrence concurrence. This so-called “rational basis with teeth” standard would to my mind be violated here even with this makeweight argument. One that is patently phony since the state recognizes loads of marriages where children is not likely (e.g., seniors) and not because they are lucky ducky also-rans. The state realizes that the reasons for marriage INCLUDE them too.

    • Joe says:

      That’s just one reason it’s phony. The harm to children, as noted by CJ Kaye’s excellent dissent, comes to mind. Bisexuals. And, many other things. “Rational basis” is a very low standard, so Scott is correct that it is important to note the “plus” involved here. Still, some opinions, perhaps stretching precedent a bit or (like MA) applying somewhat stricter state law, argue even RB isn’t met.

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