mitoguard's avatar
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agrab0ekim

Just wondering, but does the 14th trump the 1st, and would the court simply say that "states must also have unions of equal measure, but marriage is a quintessential religious term, and gay marriage would be up to each church"

Would the Court say that under what conditions? I'm honestly not clear from a first reading how this enters the discussion.

Quote:

(also, I think you are reading way to much into Romer, but I might be wrong there (I see Romer as very limited, it is a question of rational basis (which is, IMHO, the standard for homosexuals (yes, Lawrence elevated to quasi-suspect, but until the court defines that, it is the same as rational)), not a question of SS, which is the only area I think these laws could fail.


And, you must've misunderstood what I was saying somewhere back in that post, because I'm not reading too much into Romer. I'm actually taking a very, very limited reading of Romer, nor am I suggesting Romer used strict scrutiny in overturning Amendment 2.

My argument (rephrased again, and perhaps intelligible, third time is the charm) is this:

1) The 9th Circuit recognizes that the symbolic difference between "married" and "civilly unionized" has very real consequences in people's lives. I am okay with this.

2) The 9th Circuit also says that the legitimate state interests in promoting procreation, ensuring ideal conditions in child raising etc. do not need to be assessed against Perry's asserted interest in marriage rights and equal protection of law, because simply limiting the word "marriage" does nothing to further those legitimate state interests. It's not doing anything but change names.

3) But the 9th Circuit has already said that the difference, even if symbolic, has real consequences. So why isn't it rational to assert limiting the word marriage might promote those state interests?

One possible answer is "because what you're asking is, why can't we, to promote public interest, give social prestige to some groups over others? Or really, why can't we shame gay people for the public interest? And, when you put it that way, you run afoul of the prohibition in Romer and Moreno (and that bit in Lawrence about moral disapproval) that you can't use "we don't like you" as the basis of legislation."

But I think that's a misreading of Romer. The pure animus requirement of Romer's rational basis analysis says "disliking a group isn't a legitimate interest," it doesn't say anything Rawlsian about equal dignity or whatever, it just says "we dislike this group" isn't a good reason to do something. I don't think Romer would implicate, e.g., a government's decision to run public service ads that portray people who smoke as a bit gross provided those ads were to further public health or another legitimate state interest, and not because the kids who beat up the governor in middle school all smoked or something like that.

In other words, either this is a bold new reading of Romer coming out in this case, or they really need to appeal to some specific facts about gays as a class to make the argument work, and shouldn't be using rational basis review.