July 26, 2006
Protecting the Children
While I’m not thrilled with the Washington outcome, from a legal standpoint, I understand it. Gays have not been, as of yet, identified as a suspect group. That means courts will, with a few exceptions, use rational basis as the measure of constitutionality of a law.
In other words, as long as the state can come up with any justification, the law will stand. Here, the states are saying they want to limit marriage to 1 man 1 woman, to promote stability and procreation, blah,blah,blah. Under Rational Basis, the court doesn’t need to agree with the reasoning, to find it passes rational basis.
This is especially true in the current political climate. And, indeed, the court’s majority opinion acknowledges this, by saying that gay marriage may be the future, but will not become the future by judicial action.
dolphin said (at July 26, 2006 05:00 PM):
But as Kip Esquire notes on his blog (if you're not reading it, you should be ;-)), hieghten scrutiny also applies in cases of fundamental rights regardless if the discriminated group is a suspect class.
My argument is though is that a woman should have equal rights to marry a woman as a man and vica versa, and gender is (usually) a suspect class.
Of course the majority opinion notes both of those viewpoints and dismisses them, however, I think they write them off too hastily and inadequately.
Henry said (at July 27, 2006 10:08 AM):
No, no. I understand the argument for the other side. And, I agree with it. The court could have given higher scrutiny.
But, while I wish they had, I understand why they didn’t.