The Ninth Circuit Court of Appeals has acted to reverse the democratic decision of the people of California to confine marriage to its traditional parameters of a man and a woman. In making this decision, the court decided that it could overturn the will of the people of California on the basis of what is known in legal circles as “the rational basis standard.”
When evaluating the violation of fundamental rights, the court has often used a standard of “strict scrutiny” in cases involving racial or religious discrimination. By that standard, the petitioner frequently wins. In cases of gender discrimination, the court has relied on a kind of intermediate scrutiny.
The rational basis standard is a different bird. We were taught (as have been law students for a long time) that under the rational basis standard, the government would almost always win because the burden of establishing irrationality is so high. My liberal New York Jewish law professor taught us that the court would only find a state action irrational if it did something like declare that everyone must wear one green shoe on Tuesday.
The Ninth Circuit has now effectively said that to believe marriage is a matter for a man and a woman is to be so irrational as to declare that everyone must wear one green shoe on Tuesday.
Now, I understand that many readers may favor expanding marriage to include same sex unions. And there are reasons to support that move. But the case is not so overwhelmingly strong as to render the opposite conclusion nonsensical.
This is an important case. If a handful of individuals can declare a particular point of view completely irrational (a democratically expressed view), then we are not a republic. We are an oligarchy.
Help me understand something here. I favor “marriage” to be restricted to one man and one woman, and I don’t think that’s as irrational as making people wear one green shoe on Tuesday :-)
However, wasn’t a major thrust of the court’s argument that having introduced civil unions with identical rights to marriage, the irrationality was in the denial of the label “marriage”, which strikes me as at least a plausible argument?
And isn’t the “serial polygamy” of our divorce and remarriage culture also a denial of “one man and one woman” yet there is very little uproar about it in Christian and other conservative circles — indeed, it has become almost normal even to us.
“If a handful of individuals can declare a particular point of view completely irrational (a democratically expressed view), then we are not a republic. We are an oligarchy.”
It’s no longer “a handful of individuals.” For whatever reason, public opinion on this issue is changing. Fast. Oligarchy would now involve the minority that opposes same-sex marriage getting its way (the polls are still close, though.)
Wolf Paul makes a good point. Why is the issue of same-sex marriage being given such disproportionate attention relative to serial adultery? The latter is much more common, and imo much more damaging to the sanctity of marriage.
Don’t miss Baker’s argument, though. The votes were cast and the majority rule was put in place. Then a small group is overturning the decision because of the rational basis standard. It is clearly not irrational for prop 8 supporters to demand marriage be defined as one man and one woman. While the court obviously has an agenda, they need to find a more convincing ‘loophole.’
And note that this vote wasn’t taken in Alabama or Mississippi but in California. MOST Californians )of all people) still think “Marriage” should mean one man and woman. Or at least most of the ones who would bother to show up to vote.
Serial polygamy/ divorce does more damage to marriage than homosexual behavior, in my opinion. However, it is necessary to have some means to dissolve a dangerous, abusive marriage. We have arguably made it too easy to dissolve a marriage, but this is a matter of degree. Legitimizing homosexual “marriage,” on the other hand, is creating through law a new kind of legally sanctioned relationship.
I would be interested in more comments on the substance of the ruling (which I have not read). However, I don’t think it’s irrational to maintain a difference between civil unions and marriages. The potential for childbearing and the cultural history of marriage are so significant that it is reasonable to create a different legal class to whom are given some special treatment under the law for their relationship.
I know many (including Meggie) will disagree with me on this. But even if I am wrong, it is a major step that if judges have declared a fundamental belief about human relationships to be irrational. What started as an argument for “tolerance” is being used to intolerantly suppress those who disagree with changing the definition of marriage.
But now I’m starting to repeat Hunter… Good post.