No Rational Basis for Traditional Marriage?

I have been a bit slow on the uptake considering the recent Prop 8 ruling in California and the confirmation of Elena Kagan to the Supreme Court. Some of this has been work-related, replete with long meetings and other social functions, but part of me has also been content to read much of the opinions surrounding the Prop 8 ruling in California.

For those not familiar with the case, rather than summarize it here, I’ll merely point to the wiki for background.

But here is the gist of the opinion: “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”

A quick gut check gives me pause. Is there really no legitimate reason – not even one – for the state to promote heterosexual marriage to the exclusion of homosexual marriage? The “legitimate reason” does not even have to be correct, it need only be plausible. Almost any justification will suffice.

Despite the research, think tanks, studies, history, popular opinion, and health considerations for promoting traditional marriage, is there really not even one reason to maintain the status quo? Apparently not for Judge Walker.

The proponents of Prop 8 do not have a significant burden here. In fact, the burden is quite minimal. They need only stand on the weight its research, statistical studies, and history to support its contention. The plaintiffs have the burden – seemingly impossible – to show that the government does not even have a conceivable reason for protecting marriage.

The plaintiffs carried the day. I cannot say I am not surprised by the result of Judge Walker’s opinion. We are, of course, partially in the alternate reality that is California and the Ninth Circuit. From a gut reaction, I find it incredulous that there is not a rational basis reason for traditional marriage.

Rational basis view is perhaps the easiest burden to satisfy.

What is interesting is that Judge Walker appears to ratchet up rational basis review for homosexuals. Homosexuals, of course, are not recognized as a suspect class, but increasingly, the class forms a bubble between rational basis review and intermediate scrutiny (the latter reserved for gender and illegitimacy). This has been come to be known amongst constitutional scholars as rational basis “with bite.” It has happened before with Romer v. Evans and Lawrence v. Texas.

Nonetheless, homosexuality is not a suspect class and is not protected as such and it is not within the province of a district court judge to create such precedent. I’m still making my way through Judge Walker’s opinion (it’s 136 pages), but it is certainly disingenuous to assert that the state has no legitimate interest in protecting traditional marriage. He would have been on much, much sounder legal footing had he ruled the for the Prop 8 proponents and then forced the plaintiffs to appeal to the Ninth Circuit and then to the Supreme Court. As it stand now, it seems like the decision is on a collision course to the Supremes.

Opinion is here.

What Can The Judiciary Expect In the Next Three Years

With the newest addition to the Arizona Supreme Court, Justice John Pelander, (a University of Arizona alumni) having his investiture ceremony last week, I couldn’t help but think toward the future of the United States Supreme Court.

Obama has already placed one Justice on the Court – Justice Sotomayor. Before his term ends, at least two more will secure his judicial legacy. Justice Stevens, already 89, will likely be the next one to retire. This year, he only hired one law clerk rather than the four he has customarily taken. Stevens is also considered to be the most liberal justice on the bench.

But if Stevens remains, the next probable candidate is Ginsburg. Nominated by Clinton in 1993, Ginsburg has been plagued with health issues – colorectal cancer in 1999, pancreatic cancer in 2009 and a brief hospitalization this past September.

The retirement of these two justice will not affect the dichotomy of the Court. Both Ginsburg and Stevens form part of the liberal-leaning block and Obama will certainly appoint two more with younger judges with similar ideologies.

However, the court still remains in delicate balance between conservatives and liberals.

How Far Does the Second Amendment Reach?

That’s the question the Supreme Court will answer next year in McDonald vs. Chicago.

Aside from the District of Colombia prior to 2008, Chicago’s extensive restrictions on firearms led many to suspect that the city’s ban on such weapons was also unconstitutional in the wake of D.C. v. Heller. Unsurprisingly, several Chicago citizens backed by the Illinois State Rifle Association brought suit against the city challenging the ordinances as violations of the Second and Fourteenth Amendment. Specifically, the case challenges the ordinances:

  1. Banning the registration of handguns, thus effecting a broad handgun ban;
  2. Requiring that guns be registered prior to their acquisition by Chicago residents, which is not always feasible;
  3. Mandating that guns be re-registered on an annual basis, including the payment of what amounts to an annual tax on the exercise of Second Amendment rights;
  4. and Rendering any gun permanently non-registerable if its registration lapses

The City of Chicago prevailed both in the district court and in the Seventh Circuit. How the Supreme Court will rule remains unresolved.

Will the Second Amendment be incorporated against the States? Will the Slaughterhouse cases of 1873 be overturned? What implications will this have to the rest of the Bill of Rights?

Stay tuned.

Petition for cert here.