U.S. appeals court strikes down California same-sex marriage ban

Expanding rational basis to preclude a law defining marriage as man & woman seems like a giant leap to me, but we'll see.

 

For the record, the Supreme Court is going to side with you. But it's going to be 5-4. So not a huge leap. Not activism. Just a borderline case that went one way instead of the other. It all comes down to whether you think that funneling procreation into opposite-sex marriage is a rational basis for the law that is advanced by the law.

 

You guys are talking way over my head on the legalese of it, but as a practical matter I don't see how, in California of all places, marriage and child-bearing can be seen as linked.

So in legal terms, does the state's 40 percent rate of out-of-wedlock births have any place in the discussion?

 

The Supremes won't hear this until 2013, so it won't be a campaign issue. Not like when the Supremes step in on health reform.

And Guy, the legislature didn't write the law sloppily -- it came out of a statewide ballot initiative.

If this case is really all about "funneling procreation into opposite-sex marriage," then the court, to me, would need to answer why infertile couples are allowed to get married (or stay married), or why anyone woman who is post-menopausal is allowed to be married. Or, hell, why couples who have no intention of having children are allowed to get married.

EDIT: Or, why it's not a crime to have babies out of wedlock.

 

Not over your head at all. You have summed up the 133-page opinion in one sentence.

 

I'm not so sure the Court is going to side with Guy. I'm with POO--they're going for Kennedy, who, if the Ninth Circuit is overturned, is going to have to have some justification for seemingly going against his rulings in Lawrence and in Romer.

 

All of that is definitely evidence that the reason given by the state to support the law is pretextual.

 

Can you refresh us on his opinions in those cases and their applicability here? I guess I need to dig into his paper trail on this and related issues.

 

Definitely going to Supreme Court next? Not en banc?

 

I found this on Kennedy, which is pretty good (and, ultimately, doesn't answer the question, because no one knows):

http://www.slate.com/articles/news_and_politics/jurisprudence/2010/08/what_will_anthony_kennedy_do_on_gay_marriage.html

 

Olsen and Bois structured the trial around eventual rational basis review. They marched expert after expert after expert after expert to the witness stand to testify that gay marriage had no rational basis in society. The defense's attempt to counter was pathetic. Read the excerpt below, and then the trial transcript that will be at issue in this case and you'll see the strategy. I'm not saying it will work. Might. Might not. But the ball is squarely in Anthony Kennedy's court.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02-102#opinion1

Lawrence v. Texas:

 

Quick follow-up: Ninth Circuit draws 11 judges for an en banc panel. Despite its reputation, there are some pretty heavy-hitting conservatives out there, too. Not likely, but supporters of Prop 8 could get lucky with the panel draw (setting aside purely strategic decision if they're just looking to get to the SCOTUS as quickly as possible).