Because we need ANOTHER gay marriage thread . . .

[Just_A_Guy]

The LDS Church (well, a number of other churches signed on; but lead counsel was Kirton-McConkie out of SLC) has filed an amicus brief in the Supreme Court's pending case regarding Proposition 8. Deseret News coverage is here. The brief itself is here.

(Mod hat on for a moment): Guys, I just wanted to make the docs available to anyone who was curious to see them. Play nice.

[Guest]

Can you break it down for us laymen?

[pam]

Seriously JAG????

[Soulsearcher]

The LDS Church (well, a number of other churches signed on; but lead counsel was Kirton-McConkie out of SLC) has filed an amicus brief in the Supreme Court's pending case regarding Proposition 8. Deseret News coverage is here. The brief itself is here.

(Mod hat on for a moment): Guys, I just wanted to make the docs available to anyone who was curious to see them. Play nice.

Well written and some interesting points. that being said i worry that it's along the lines of the original arguments put up by the defense in the original challenge. There is a lot of guess work and maybe's and what if's but there is not much in the way of clear statement or support for a lot of what is said. Even just glancing at a few of the cases cited, with out support for the points made in the last 5-10 pages i can see a number of the justices putting their focus there and giving the challengers some tough times. Yes i'm aware this is just a brief, but i do hope there is a bit more substance that's going to be argued.

[LittleWyvern]

Can you break it down for us laymen?

The brief itself seems to make these three main arguments:

• Prop 8 reflects a rational choice among conflicting visions of marriage (and, thus, is not prejudice)
• The fact that Prop 8 was supported by religious voters is not sufficient grounds to consider it invalid
• Prop 8 satisfies the equal protection clause

Argument 2 is the only one I'd instantly agree with. Argument 1 is... interesting (I can see the point but I don't understand what it has to do with the constitutionality of Prop 8), and regarding Argument 3 I think I'd have to study the equal protection clause more, because my understanding of it would lead me to conclude the opposite.

In general, the argument seems to be "It's constitutional because it's rational."

[MarginOfError]

In general, the argument seems to be "It's constitutional because it's rational."

If my understanding is correct, Prop 8 was overturned because it failed rational scrutiny. Thus, the argument for overturning was, "it isn't constitutional because it isn't rational." The Church's counter argument would more appropriately be described as, "it can't be unconstitutional on those grounds because it is rational."

[Just_A_Guy]

Without having deeply perused the brief or compared it to the district and appellate court holdings, I agree with MOE and to some degree with Little Wyvern.

Basically, when you're evaluating a law under the Equal Protection Clause, you apply one of three levels of scrutiny:

--Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.

--Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest.

--Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

"Rational basis" is a very, very broad test and very deferential to the body that imposed the law. If we strike down a law because it fails rational basis, we aren't just saying we disagree with it--we're saying that anyone who agreed with it is crazy, or deliberately out to hurt somebody.

As I recall, that was the real bombshell in Judge Walker's initial opinion. The question among legal academics up to that date had been whether gay rights fit into "intermediate" or "strict" scrutiny; since 2003's Lawrence decision had left a rather nebulous answer. Rational basis was never even on the table, because I think the vast majority of gay marriage advocates didn't think they could win on that argument.

At this point, given social trends, I don't think SCOTUS' holding will make a long-term difference--I think CA is ready to accept gay marriage in the next election cycle. But the reasoning that SCOTUS establishes, will go a long ways towards determining how government interacts with churches and individuals who continue to look at homosexual relations as sinful and, on that basis, refuse to condone them. It's the difference between "we disagree with you, but respect your right to conduct personal, associative, and business relationships as you think appropriate" versus "you're all crazy and you will get in line".

Edited February 6, 2013 by Just_A_Guy

[Vort]

I appreciate the legal education I'm getting from MoE and JaG, as well as the opportunity to refer to people by nonsensical acronyms.

[Vort]

As I recall, that was the real bombshell in Judge Walker's initial opinion. The question among legal academics up to that date had been whether gay rights fit into "intermediate" or "strict" scrutiny; since 2003's Lawrence decision had left a rather nebulous answer. Rational basis was never even on the table, because I think the vast majority of gay marriage advocates didn't think they could win on that argument.

So what are the odds that the "rational basis" argument gets overturned, but the fact that Judge Walker used rational basis establishes it as the level of scrutiny to be used? This would be deliciously ironic: A judge attempting to legislate from the bench, as it were, by applying a standard which he absurdly misuses, ends up torpedoing the very thing he was attempting to establish by wrongful means?

[Just_A_Guy]

So what are the odds that the "rational basis" argument gets overturned, but the fact that Judge Walker used rational basis establishes it as the level of scrutiny to be used? This would be deliciously ironic: A judge attempting to legislate from the bench, as it were, by applying a standard which he absurdly misuses, ends up torpedoing the very thing he was attempting to establish by wrongful means?

I'd be delighted with such a holding, but I don't think it likely. SCOTUS is deeply aware that their political capital, as it were, erodes each time they take on a hot-button case. Moreover, the progressive wing of the Court is powerful. I think they'll probably say Walker used the wrong standard and kick it back to the district court for re-argument according to whatever they say the appropriate standard is; hoping that by the time it gets to SCOTUS again the California voters will have reversed themselves and render the whole question moot.