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The Spectacle Blog
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.
View all comments (9) | Leave a comment
More Blog Posts by Hunter Baker
http://spectator.org/blog/2012/02/08/the-reversal-of-proposition-8
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obadiah| 2.8.12 @ 1:51PM
Too bad you didn't read the opinion. They did not say the stupid stuff you report they said. They said the opposite. They found a very clever way to reach the result they wanted without going the route you specify. Clever may be good or bad but it is not stupid.
Hunter Baker| 2.8.12 @ 1:58PM
Obadiah, that is what they did. I didn't say it was stupid. When they say there is no legitimate reason to treat gay couples differently, they are arguing the Prop. 8 voters were irrational. Super irrational.
Martin Owens| 2.8.12 @ 2:08PM
"...then we are not a republic. We are an oligarchy."
Um, Mr. Baker, don't look now, but...
Kingofthenet| 2.8.12 @ 4:12PM
You don't get to 'vote' on a minorities Civil Rights...PERIOD!
Curtis Rassmussen| 2.8.12 @ 7:46PM
Your definition of civil rights is so broad that it's rendered meaningless. Where does the line for protected groups end and the line for moral sanity begin?
Kingofthenet| 2.8.12 @ 4:15PM
The REAL idea behind the 'Rational basis' argument is that you need an EXTREMELY compelling reason to take away a right, and before Prop 8 Gays HAD the right to marry, so to take it away it would have to be one HECK of a reason...
Paul McGrath| 2.8.12 @ 10:05PM
I have the RIGHT to run a red light. I have the RIGHT to drink before I am 21. I have the RIGHT to drive a car before I turn 16. I have the RIGHT to drink booze as much as I want and drive my own car as long as I don't hurt anybody. I have the RIGHT to beat my wife, because she married me. I have the RIGHT not to go to school before the age of 16 because school is stupid. I have the RIGHT to smoke marijuana in a movie theatre because it's good for my health.
I have the right to marry my homosexual lover and have all the rights of marriage conferred upon me even though the act of my marriage will never result in children, and if my selfish act will damage the rearing of children in my society for every generation to come, I don't give a damn.
Oldefarte| 2.8.12 @ 6:16PM
Again, the NATURAL LAW is the basis for MAN'S LAW [ie THOU SHALT NOT KILL=LAWS AGAINST MURDER], and the former declares marriage as between the opposite sexes in such instances as THOU SHALT NOT COVET THY NEIGHBOR'S WIFE [ie a man cannot covet a woman-wife of another man], HONOR THY FATHER AND THEY MOTHER [ie man and woman] etc. It's pretty simply folks, but I guess if homosexuals wish to subversively obtain group medical/pension benefits by co-habiting with a member of the same sex then they must obtain a MARRIAGE certificate huh????
Moe1138| 2.9.12 @ 10:18AM
Legislating from the bench is Socialism. The will of it's citizens will always be overturned.
Bienvenidos to the PRK, Peoples Republik of Kalifornia.