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Guest Post: Obama and the Defense of Marriage Act

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By Tony Montanaro

On February 23, President Obama managed to do an extremely effective end-run around the middle-of-the-field blocking that stands between his pro-homosexual “same sex marriage” agenda and the state of law and jurisprudence in the country. Obama told the Justice Dept. to stop offering arguments on two same-sex marriage cases: Pedersen v. OPM (2nd Circuit) and Windsor v. United States (1st Circuit). Each of these are challenges to Section 3 of the Defense of Marriage Act (DOMA), the federal law that says that for federal purposes, “marriage” means only a union between one man and one woman. While the President says that the Justice Dept. will continue to enforce the law, it will no longer defend its constitutionality in court. Justifying his former as well as current actions, Mr. Obama insists that although the former Justice Dept.'s defenses of the act, based on the “rational basis” standard, were reasonable, the proper testing standard is a higher level standard, such as the “compelling reason” standard, and it cannot pass that test.

While he couched the issue (using the Attorney General) as a limited legal one, make no mistake: this move, the entire point of this maneuver, if it stands, is to have the impact of removing all legal impediments to gay marriage. It may take a couple more years and a few more chess moves, but the intended results are as clear and nearly as certain as anything in politics can be: that there will be no federal impediment to gay “marriage”, and any state impediment that you could imagine will run into such enormous problems that almost all of the states will cave in. That’s the idea, at least.

What will happen without the administration defending the law, what is realistically foreseeable? Congress can defend the law in federal court without the Justice Dept. The Senate can send its own attorneys to defend it, but it takes a Senate resolution to do that, and given the current state of the Senate that might be difficult. The House can do it, either by having the Speaker choose to do so, or by a House resolution. Either way is probable at this stage. There is no way that the House will leave it up to chance, not after last November’s elections.

But without the Justice Department weighing in, it seems a virtual certainty that eventually one of the Circuits will say that Section 3 is unconstitutional. Then it will move to the Supremes, and they will almost certainly accept the case if there are competing Circuit results (they probably will even if there are no conflicting circuit results). At this moment, the broad thinking appears to be that the Supremes are roughly divided four and four on cultural issues like gay marriage, with Anthony Kennedy appearing to be a Belgian waffle. He will undoubtedly be called the “swing vote”, even though no one of the nine has any more vote than any other, and none can be the “deciding vote” without four others also playing into that same decision on the same side.

Nobody really knows how Kennedy will vote, but he not only voted with the majority in the Lawrence vs Texas case in 2003, he wrote that decision, striking down sodomy laws. That case set the stage for much of the movement “forward” by gays in the last eight years. It is hard to see how Kennedy could come up with a vote in favor of DOMA after that.

If the Supremes decide to strike down Section 3 of DOMA, Section 2 (that no state is required to uphold other states’ same-sex marriages) will quickly become a dead letter. For one thing, there is far too much controlled directly by federal law that the states cannot block: just for example, pension law (with survivor pensions for spouses) is federal. Health insurance law (at the moment, at least) is thoroughly wrapped up at the federal level. Any state that tries to be a hold-out will find its ability to retain any effective meaning to its resistance very problematic. If 80% of legal arrangements accept gay “marriage,” the remaining 20% will be on the defensive every moment of the day. And in fact it would not be long before a federal judge would strike down Section 2 as well, merely to give full effect to striking down Section 3, if not for its own sake.

Through Mr. Obama’s quite clever ploy, marriage and the family are under the most direct threat yet. Given the dynamics of the courts, there is a very high probability that Obama’s ploy will work. The only truly strong method to defeat this would be a constitutional amendment to defend traditional marriage. I don’t know whether we have thirty-four states ready to sign a pro-marriage amendment, but there is a minimal chance, at least. Conservatives saw this writing on the wall fifteen years ago, and spoke out vociferously after Lawrence, but we didn’t make a concerted effort at an amendment then, when it was more within reach. Is there any other way to block this?

Comments (36)

pension law (with survivor pensions for spouses) is federal. Health insurance law (at the moment, at least) is thoroughly wrapped up at the federal level.

Actually, when federal law asks whether two persons are married, that answer is almost always imported from state law: DOMA is the one exception. For people living in a state where marriage is still recognized as only between a man and a woman, the demise of DOMA would not change the meaning of other federal statutes referencing marriage.

The demise of DOMA would be terrible for lots of other reasons, including probably ramifications related to other federal laws, but it wouldn't of itself have the particular effect you reference there.

Thanks, Tony, for the post. Great to see you here with a guest post!!

If the Supremes strike down section 3 as unconstitutional, isn't it probable that their reasoning behind that strike-down would be such that _automatically_ states would be required (on pain of having their resistance ruled unconstitutional by the Supremes) to recognize other states' homosexual "marriage" arrangements? I'm having trouble thinking of any reasoning that they might use that wouldn't have that immediate effect.

In fact, I suppose I might as well go farther, while I'm doom-and-glooming. If the Supremes strike down DOMA as unconstitutional, wouldn't their reasoning be such that all state laws and all state constitutional clauses refusing to recognize homosexual "marriage" (such as my state has) would also automatically be deemed unconstitutional by the same reasoning?

"...marriage and the family are under the most direct threat yet..."

Oh, please. This is just the icing on the cake. The cake was baked long ago.

Once the welfare state started subsidizing unwed mothers, the traditional institution of marriage was doomed - especially among those who most needed it.

Gay "marriage" doesn't amount to a hill of beans, in comparison.

If the Supremes strike down DOMA as unconstitutional, wouldn't their reasoning be such that all state laws and all state constitutional clauses refusing to recognize homosexual "marriage" (such as my state has) would also automatically be deemed unconstitutional by the same reasoning?

Well, that depends on the basis on which they strike it. If Kennedy discovers a penumbral right in the 5th/14th amendments to marry any other individual, then yes, the result you identify would be included in that ruling. Of course, there are other grounds that DOMA could be attacked. For instance, the liberals on the court could discover Article 1, and rule that Congress doesn't have the power to define marriage, that it has to accept whatever definition is adopted by the respective states. That wouldn't say anything about whether the states themselves could keep traditional marriage laws.

If the Supremes strike down section 3 as unconstitutional, isn't it probable that their reasoning behind that strike-down would be such that _automatically_ states would be required (on pain of having their resistance ruled unconstitutional by the Supremes) to recognize other states' homosexual "marriage" arrangements?

Again, if the Court were to root their reasoning in striking § 3 in something peculiar to the federal government (and not in the 5th and 14th amendments, which the Court absurdly regards as containing the same standard), this would not be the result. Section 2 of DOMA prevents the states from having to recognize same-sex marriages from other states.

Some critics of DOMA have charged that § 2 violates the full faith and credit clause, but the provision seems clearly sustainable under the second sentence of that clause: "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Section 2 is just a law that says that no evidence of an out-of-state same-sex marriage is sufficient to prove that marriage in another state maintaining contrary laws.

Kennedy watching is a risky game to bet on, but my impression is that he is not going to be comfortable finding a right to state-recognized same-sex marriage in the Constitution. It's a vastly immoderate position for which there is little support in international constitutionalism. Take the mush he wrote in Casey: he really thought he had crafted a system there that would allow the states to enact sensible legal regimens, that everyone could live with, and that would diffuse the debate. He was wrong, but that's what he thought. Compare Casey to Kennedy's opinion in Carhart: he was hopping mad at the majority in the latter case, who basically took his language from the earlier decision and sold him up the river with it. No, AK thinks the Constitution is nice and squishy and should allow everyone a lot of room to get along in a world without bright-line rules. Nationalizing ssm just doesn't seem like his style. But who knows?

Gay "marriage" doesn't amount to a hill of beans, in comparison.

Um, sure, Steve, because if I'm an employer and I don't show respect for single motherhood in all my words and deeds, I get fined. No, that doesn't work. Hmmm.

Just recently in Illinois their civil unions law (we're not even to calling it "marriage" in Illinois quite yet) was used to justify suing hotel owners who wouldn't rent the right type of room to a same-sex couple.

Single motherhood is bad, but you cannot find in it all the ways you can find in the homosexual agenda for using the power of the state to force _other people_ to recognize, respect, and treat as normal present, on-going immoral relationships. It just isn't the same kind of "we'll make you agree with us or else" agenda. A libertarian, of all people, should be concerned about this.

Wait, make that, the hotel owners wouldn't _host_ a civil union on their property. Complaints have, of course, been filed with the Atty. General. There simply is no relevant parallel to this "you will submit, you will affirm us" agenda in the existence and even subsidizing of unwed motherhood.

Steve, I thought about just your point earlier today. It is my opinion that 100 years from now, a good historian will be able to say that first the loosening of sexual mores (particularly sex outside of marriage), then the loosening of divorce laws, were essential precursors to the dis-establishment of marriage as a viable social institution, but that gay marriage was the straw that broke the camel's back. You may prefer to say that the earlier changing of the sexual mores constituted the breaking of marriage in itself, and gay marriage is just the natural unfolding of that brokenness in the plain light of day. Some people might feel this is mere semantics. I don't. We have had stronger and looser sexual morals in societies for 5000 years (at least) without marriage foundering altogether. While I agree that the welfare state and easy divorce were horrible additions to the process, they constituted problems from which society and marriage could have, theoretically, recovered, primarily by reversing the laws which initiated those problems. I don't think the same can be said of gay "marriage."

Lydia, we'll have to see about what "reasoning" (using the term loosely) a Supreme Court decision striking down Section 3 would rely on. But I don't think that any reasoning that someone on the bench might use would leave marriage intact. It might take a few more iterations of chess moves, but the internal logic is, I believe, inescapable: once federal law gives full force to gays getting rights to pensions, health care, and other benefits to their so-called spouses, the dam-break is all but inevitable: everyone else will clamor for their piece of the pie, and states will be hard-pressed to hold a line when their neighbors are all getting in ahead of them. Social dynamics will put enormous pressure on any state trying to limit the scope of expanded "rights" in any federally regulated use of the concept "spouse".

the demise of DOMA would not change the meaning of other federal statutes referencing marriage

Titus, I am not following your reasoning. If DOMA section 3 is struck down, then immediately every pension plan in the country (which is required by federal law to provide spousal survivor benefits) will immediately expand pension rights to any employee who has a same sex "spouse", no matter what state they NOW live in. The current meaning of marriage, for ALL federal purposes, is a union between a man and a woman. Without DOMA, the meaning of marriage for all federal purposes will be whatever state law provides. But being federal, the effect of ANY state granting ssm will that all other states have to give effect to that ssm with respect to any issue regulated by federal law. For example, every state, city, and county pension plan would be required to provide spousal benefits to all gays who were married in a "gay marriage" state, regardless of the employing state's laws (even constitutional amendment) against gay marriage.

Lydia, obviously I agree that suing hotel owners for refusing to rent "the right type of room to a same-sex couple" is just completely stupid & wicked. But, then, I think it would be stupid and wicked to sue them for refusing to rent to any other unmarried couple, or to a mixed-*race* couple, or what have you - I'm just that "libertarian." In the larger context, this strikes me as pretty small potatoes.

"Single motherhood is bad, but you cannot find in it all the ways you can find in the homosexual agenda for using the power of the state to force _other people_ to recognize, respect, and treat as normal present, on-going immoral relationships. It just isn't the same kind of 'we'll make you agree with us or else' agenda."

Well, sure - not "all the ways" (accepting, arguendo, your conception of "immoral relationships"). Gay marriage adds a few new curlicues. But the numbers involved are much smaller, and the social impact is much, much smaller than earlier innovations.

Did you notice, by the way, the beating that Mike Huckabee took last week for expressing the very mildest of reservations about Natalie Portman's proudly flaunted out-of-wedlock pregnancy?

I was wondering if anybody here would post in his defense.

Nope.

So, let me get this straight...Charlie Sheen can make a "porn family", Kelsey Grammer can end a 15 year marriage over the phone, Larry King can be on divorce #9, Britney Spears had a 55 hour marriage, Jesse James and Tiger Woods, while married, were having sex with *everyone*. Yet, the idea of same-sex marriage is going to destroy the institution of marriage? Really?

Revolutionary, if hypocrisy is "the tribute that vice pays to virtue," what does that say about the two different categories of a) marriage, and b) same-sex unions?

Congress can defend the law in federal court without the Justice Dept.

That's good to hear, because I saw some "expert" on TV claiming that Congress had "no standing" to do so, which struck me as very odd.

and the social impact is much, much smaller than earlier innovations.

Steve, I cannot agree, because it is bound up with an entire agenda, and that agenda requires changing all institutions to affirm homosexual relationships. Consider counseling, for example. The number of clients seeking counseling about homosexual relationships is relatively small, but entire counseling programs are now kicking out students who are not on-board with the normalcy of homosexual relationships and who will not agree in advance to counsel in a "gay-affirming" manner. And they aggressively seek to find out if the students are on-board, too. It's an entire totalitarian approach to society. The Johns couple in the UK has been barred from doing _any_ foster parenting because they will not agree in advance to "tell children that it's okay to be homosexual." It seems pretty clear that adoption will be blocked, too. Think about that: It's now quite plausible that in countries on-board with the agenda as a whole, all traditional Christians may be blocked from adopting because of their beliefs about homosexuality. That's a _ginormous_ societal impact. The totalitarian impact of the agenda is far, far out of proportion to the number of people of homosexual orientation in society.

I do have some sympathy with what "revolutionary" and Steve Burton have said. The push for same sex "marriage" is a symptom of how utterly degraded and confused the whole institution of marriage has become in out culture. The only reason gay "marriage" is even conceivable is that we, as a society, treat it as a mere contractual arrangement between consenting adults that has no essential connection to child-bearing and is no more binding than an apartment lease. Gay marriage is to the state of the family what bleeding esophageal varices are to the end-stage alcoholic- sure they will kill you, but the only reason they exist is because the patient drank his liver into a cirrhotic state. To continue the analogy, no fault divorce, contraception, the welfare state, and the sexual revolution are the fifth of cheap vodka we've been consuming daily for the last 40 years. On the other hand, I also share Lydia's concerns. If gay "marriage" becomes the law of the land, the legal consequences for traditional Christians will be dire, and we can expect a torrent of legal and bureaucratic harassment and oppression that, I fear, can end only with violence.

Gay marriage adds a few new curlicues.

Steve, it isn't just gay "marriage", as Lydia said. It's a whole agenda about what morality means. It's an agenda that reaches into adoption and foster care, it reaches into every single school curriculum. It reaches into everything that marriage reaches into, which is damn near everything, precisely because it is an agenda about morality, rather than a mere practice.

Conservatives forecast exactly these evils 15 years ago, and they are gradually coming true as forecast. Well, conservatives are also forecasting that people will push for polygamy and polyandry, line marriages, bestiality, and marriage to inanimate objects (all using Justice Kennedy's dictum in Casey that your life means whatever you say it means.) And that all of these will be vise-locked into school curricula as if they were perfectly normal, moral lifestyles. But beyond that, Christians who believe in traditional Christianity will be hounded out of every profession that touches on family life: counseling, medicine, law, teaching, etc. Religious persecution against traditional morality is ALREADY happening because of "gay rights", it will become prevalent. It will be one very, very small step from that to telling straight couples that they cannot have kids if they won't raise them pro-homosexual.

Revolutionary, it is one thing to engage in practices that undermine the health of the institution of marriage, because they are examples of marriage poorly done. (And, by the way, I don't think that the specifics you mentioned can be "normalized" as being healthy lifestyles without wrecking marriage, also.) It is a whole new level of evil to push a new meaning of marriage itself, that undermines the very concept of marriage as formerly recognized.


Unwed mothers aren't going to present us with Test Acts the way same-sex marriage will. We already have a model in the Brooks Brother's scenario.

"Test Acts" is a very good term, Scott.

Untenured, you are right that the culture of sex is already greatly degraded, and trending worse even without gay "marriage". But few people who get married 3 or 4 times think that marriage as such ought to be temporary, and that people should practice serial marriages as a healthy lifestyle. At least when they enter into each marriage, they hope that it lasts - they don't usually enter THIS marriage hoping that it breaks up soon. And even the degenerate few who really do want to just be married for a while only don't think that this sort of arrangement should be a protected class that is required teaching in schools.

Steve, once gays get marriage broken to their wills, there is no stopping all the other arrangements that any few people want, including polygamy and temporary marriage. Once you break the concept of marriage up so that it no longer pertains to the sort of union that inherently COULD be about children, there is no reason to impose any kind of restriction on it. Marriage is supposed to be for life, but that's principally because of its relationship to reproduction and children. Break that, and there is no reason why marriage SHOULD be for anything other than whatever period of time the people want: 10 years, 3 years, 6 months. One night. There just isn't any principled way to object to these. But that of course disrupts the entire rationale of property rights being hinged on marital relationships. Break marriage up by allowing gays to "marry", and introduce temporary marriage, and then you will end having to put a long laundry list of property relationships into the marriage contract, whichever way the couple (or threesome, or 42-some) decides makes sense for them. And other spelled out limits, for all other categories of rights and obligations. So get rid of any _standards_ of spousal rights of any sort. Which effectively destroys the entire social fabric of marriage. Line marriages especially will create truly wacky arrangements, and I cannot even imagine what marriage with inanimate objects will imply in social contexts.

@Tony:

I don't disagree. But, again, I think the reason it has come to this is because of the manner in which most heterosexuals now understand marriage. Most people look at marriage as a contractual arrangement whose primary purpose is subserve the pursuit of happiness and the self-actualization of the adults who enter into it. No essential connection to children, no covenental exchange of persons. Once marriage is understood in these terms, the refusal to grant homosexuals access to it can only seem like an irrational prejudice that is based off of people's "ick" factor or whatever. If the fact that Tommy and Susie like each other and want to live together is sufficient to entitle them to marry, despite the fact that they are contracepting and have separate bank accounts and might well leave each other in the midst of an "Eat, Pray, Love" inspired "life crisis", then it is going to be awful hard to explain why Tommy and Billy shouldn't have access to marriage too. Now, I agree that there is a world of difference between marriages lived out badly and the moral and metaphysical absurdity of gay "marriage". My point is that heterosexual behavior is largely responsible for our collective inability to recognize gay "marriage rights" as the moral absurdity that it is.

I think, though, Untenured, that lots of muddle-headed people who would have trouble giving a thoughtful response to the question, "Why shouldn't we recognize homosexual 'marriage'?" are at the same time not committed to pursuing and ousting those who don't approve of homosexual "marriage." The totalitarian impulse doesn't automatically track the muddle-headedness about marriage generally. It's only the true believers that have the totalitarian impulse. And I don't really believe that we can very meaningfully trace that totalitarian impulse to muddle-headedness about the meaning of marriage. It seems to have a different ideological source--in something like a real _hatred_ of normalcy and a desire for the raw power to tear down normalcy. That doesn't automatically or even predictably arise in any given individual from merely thinking of marriage in terms of self-actualization.

That is a good point, Lydia. You are quite right that there is a relentless push to "pathologize" the idea of normalcy, and homosexuality is the leading edge of the movement. For some inexplicable reason, I watched an episode of Dr. Phil a few months ago in which a cross dresser appeared, and Dr. Phil informed us that nothing was awry and so his family needed to learn to tolerate the "real him". That was the "normative" evaluation of the "expert": the wife, the children and the rest of the family *must* endure the humiliation, confusion and psychological trauma that comes from watching daddy prance around in a wig and pantyhose so that he can get to be his "true self". And that is the most insidious part of it. Once deviancy has gotten a toehold in the realm of social acceptability, it cannot remain content to simply be tolerated. It has to force a complete transformation of the whole moral landscape so that the deviants can be "themselves" without fear of any social censure. And that means that they have to systematically dismantle all of the natural social arrangement that are constitutive of the human good. Why? Because they aren't free to live out their self-creation narratives if they have do so as pariahs. And so to protect the deviants we have no choice but to tear down the very basis of drawing distinctions between normalcy and deviancy. Typical liberal outcome: screw everyone in order to marginalize no one.

Lydia, I think your point is shown up in gay rights rallies. The blatant, perverse, and over-the-top attack on normalcy at these events is beyond belief.

Yes, exactly, Untenured. And I just don't think that your average marriage sentimentalist, who might have all kinds of messed-up ideas about the ends and aims of marriage, has that impulse. He may, however, be able to be bludgeoned into cooperating with that impulse in others. And his fuzzy-headedness may be part of the reason that he can be bludgeoned. I think of all the parents who purse their lips about the fact that there is a GLBT club at their kids' public high school but who really don't know what to do or say about it. It's the fundamentalists who, even if their arguments seem crude and unphilosophical, will have no truck with it, who home school their children or send them to tiny private schools, who walk the streets trying to stop local gay rights ordinances, and therefore they are the greatest target of the rage and hatred of the totalitarians.

If I may add, too, I think that "Revolutionary," especially, is communicating a sneering dismissal of conservatives' opposition to homosexual "marriage" that is quite different from any thoughtful comment about what has led us to this pass.

Re: Tony's comment. I think this is part of the reason why the homosexual movement is so near and dear to (certain) leftist's hearts. A major theme among leftists in the Marxist tradition is that social arrangements that seem normal, natural and inevitable are in fact contingent, malleable, and arbitrary. Hence all of the late-vintange art and literature that portrays normalcy in a critical light in order to get people to "see" absurdity in the everyday and to open them up to the possibility of "radical" political and economic transformation. To destroy the idea that the family is a normal and inevitable social arrangement is about as foundational an act of "radical" political transformation as is possible. In this respect, the homosexual movement has much of the same tone and tenor of the Marxist-left. And yes, Lydia, I know that "Revolutionary" was not speaking in good faith. He is, nevertheless, correct in his assessment of straight sexual morality.

Untenured - please, please, please - be careful, until you're tenured.

Not since I first encountered our Lydia have I experienced such a "wow - this is as smart as it is dangerous" moment.

Very kind of you, Steve. And blessings on Untenured. I've never seen anything but good sense from him.

Just curious: Mr. Obama thinks that laws against same sex marriage cannot pass the "strict scrutiny" standard for constitutional jurisprudence. Yet he appears to admit that it CAN pass the lower standard of "rational basis" standard. At least, that's the import of his statement, justifying earlier Justice Dept. defenses of DOMA. Is there anyone else out there who thinks that DOMA fails the stricter standard but would succeed under the lower level standard of rational basis? Steve?

From where I sit, the rationale that discounts the possibility of DOMA passing a strict scrutiny standard such as "compelling reason" would also discount the possibility of passing the lower standard as well. For, the whole liberal mantra about gay marriage is that there is NO reason to exclude gays from marriage. They throw the entire basis of argument by the conservative side out the window: marriage has NOTHING TO DO WITH CHILDREN. In doing so, it seems to me, there would be no remaining argument to be made for the "rational basis" standard to exclude gays from marriage. I am going to guess that if Obama is serious about DOMA failing the stricter level standard, then he is perhaps outright direct LYING about why the Justice Dept. defended the earlier cases under the rational basis standard.

Also, what is the basis by which we are supposed to determine which standard is the one which applies? Is it basically just preference. That is the appearance, I think, from how the Supremes have applied the rules in the last 50 years.

Liberalism: where collective bargaining is a fundamental feature of ontology and marriage is whatever you want it to be; where sodomy is an act between consenting adults but renting the apartment in which it takes place is not; where diversity just applies to superficial characteristics but not ideas though its proponents fancy themselves "intellectuals"; where gender and intelligence are socially constructed but sexual orientation is genetic; where abortion is a choice and public education is mandatory (unless you pay out of pocket to send your children elsewhere); where offense is a legitimate response to religious expression but not pornography; where racial profiling is wrong unless it is used as a means to advance diversity in employment; where dissent is the highest form of patriotism unless you belong to the Tea Party; where ponzy schemes result in decades of prison unless the perpetrator is the federal government and the scheme is Social Security; where you are said to lack compassion if you are unwilling to pay for your neighbor's abortion but you have compassion if you are willing to destroy your own child by means of abortion.

That's high praise, Mr. Burton. I'm a big fan of yours, big fan.

TA, very good points all around. I have been calling Social Security a ponzi scheme for several years now, and people around me kind of look at me like I am growing a third eye. They just cannot figure out that there might be something wrong with Social Security right from the ground floor.

Tony, I think a lot, a _lot_ depends on what the dickens the rational basis test is supposed to mean. I have to admit honestly that the whole three-tier test approach seems to me suspect and artificial (I put up a post before I think you were reading W4 in which I suggested that it should be ditched in favor of a bigger emphasis upon the "protection" part of "equal protection"), but as we're stuck with the three-tier scheme, it seems to me that the _only_ way it can work is if the "rational basis" test is incredibly weak. That is, the way it used to be applied, almost _anything_ could be a rational basis. Scalia pointed this out scathingly in his dissent in Lawrence. When Brower was handed down, the mere fact that there are good-sized chunks of society that consider acts of sodomy immoral was considered sufficient as a rational basis! It is only in fairly recent years, and only when convenient for the liberal agenda, that "rational basis" has taken on any kind of heavy meaning at all. My impression is that it used to mean, "Can the government come up with _something_ to justify this?" It could be as trivial as, "We have a law that says you get fined for leaving your herbie-kerbie out for the whole week rather than putting it back up by your garage, because it drags down the aesthetic appeal of our city's neighborhoods if everybody has their herbie-kerbies out all week long."

To be even clearer, I think as "rational basis" used to be understood, the justices didn't even have to agree with the reason given as a "rational basis." For example, if something was outlawed on moral grounds, the justices didn't have to agree that the act was in fact immoral. The justices just had to be willing to sorta kinda understand why the government would set up a law for this reason and in deference to this set of standards.

The justices just had to be willing to sorta kinda understand why the government would set up a law for this reason and in deference to this set of standards.

In other words, the judges had to still retain a shred of humility about the role they play in the overarching order: they don't make the laws, they don't get to decide whose ox gets gored. I think that this loss of humility is utterly tied into the liberal concept of man being perfectible by the right social arrangement, and that some men have the right to create that social arrangement whatever the rest of men say. Hubris.

Well, yes. And they did still retain a _shred_ of humility even after Roe for a decade or two. I'm beginning to think it might be gone now, though. And the switcheroo on the meaning of "rational basis" is a sign thereof, which is why Scalia has been up in arms about it.

Hi. Im a liberal 15 year old (straight) girl of in a public high school. (but ive been in private school too, and its the same opinion there, just in a snootier way.)
And even the most conservative homophobic kid I know says that if it comes to a vote he'll vote for gay marriage even though he thinks it's nasty, because it's their right to be nasty. And then everyone else shoots him dirty looks for saying its nasty.
You all have the right to be as ignorant and hateful as you like. Thats your problem. but once we get the right to vote, and to have an effect on the issues, gay marriage WILL be legalized, and fast.
Ha. Ha. Ha.
Love, my generation. :)

@KidsOfamerica:

I'm sure you and all the other brainwashed drones from the government schools will do exactly as you say. But that should be cold comfort. Most members of your generation will die about 10 years sooner than anyone posting here, despite superior medical technology, thanks to: a)obesity b)sexually transmitted diseases c)mental illness and suicide. Enjoy the living hell that you and the rest of your "progressive" friends are creating for yourselves. Libertinism starts like a picnic and it ends in a massacre. You'll learn, but sadly it'll be too late.

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