Tuesday, March 15, 2005

Rationality, insanity, same sex marriage

I'll put my cards on the table: I thought the CA decision was stellar. I say this not because it's the first court to take the advice that I had been tying to telepathically beam to courts across the country, but because it was correct on the merits (so was I, of course, which is mere coincidence).

At any rate, an interesting problem is raised by Law Dork:

The question this raises is whether the statutes being tested in these cases should actually fail under a true "rational basis" test.

The answer would seem to be no: The state gives a reason that has some support (i.e., encouraging procreation), and the "fit" of the state interest with the classification needn't be all that successfully achieved under rational basis for the statute to be upheld.

For the non-law dorks that may or may not read this blog, here's what Chris is getting at: when someone challenges the constitutionality of your everyday, humdrum law, the state just has to show that it has a reason for the law isn't totally bizarre. This is the rational basis or rational relationship (RR) test. So, if New York says that butchers have to wash their hands before they get to work, and some disgruntled butcher thinks that the law is unconstitutional, the state just has to prove to the court that the reason for the law isn't totally bizarre. It doesn't have to be a good reason; it just can't be insane.

To cut to the chase:

The judge claimed that the state's nominal interest in procreation is insane. I have no reason to doubt the good judge here: it seems clear to me that the stated reason, procreation, is actually quite insane. Literally: as far as I can tell, one may as well argue that the ban on same sex marriage is aimed at helping the lions of the Serengeti. Neither makes any sense whatsoever, and to the extent that either is even remotely plausible, an immensely complex causal chain has to be posited. Let's run through a version, shall we?

P1. Some people are on the cusp of sexual identity
P2. Same sex marriage legitimizes homosexuality in some sense
P3. If homosexuality were legitimized, those mentioned in P1 would be more likely to identify as gay
P4. At least some of those mentioned in P3 would have otherwise married and had kids
Conclusion: If gay marriage is legalized, some kids won't be born that otherwise would be.

If there's a more plausible version of the alleged harm that gay marriage would bring about as it relates to the state's interest in procreation, I'd love to hear it. So far, I haven't seen a non-religious argument against gay marriage that makes much sense.