The Reversal of Proposition 8: A Dangerous Precedent

The Ninth Circuit Court of Appeals has acted to reverse the democratic decision of the people of California to confine marriage to its traditional parameters of a man and a woman.  In making this decision, the court decided that it could overturn the will of the people of California on the basis of what is known in legal circles as “the rational basis standard.”

When evaluating the violation of fundamental rights, the court has often used a standard of “strict scrutiny” in cases involving racial or religious discrimination.  By that standard, the petitioner frequently wins.  In cases of gender discrimination, the court has relied on a kind of intermediate scrutiny.

The rational basis standard is a different bird.  We were taught (as have been law students for a long time) that under the rational basis standard, the government would almost always win because the burden of establishing irrationality is so high.  My liberal New York Jewish law professor taught us that the court would only find a state action irrational if it did something like declare that everyone must wear one green shoe on Tuesday.

The Ninth Circuit has now effectively said that to believe marriage is a matter for a man and a woman is to be so irrational as to declare that everyone must wear one green shoe on Tuesday.

Now, I understand that many readers may favor expanding marriage to include same sex unions.  And there are reasons to support that move.  But the case is not so overwhelmingly strong as to render the opposite conclusion nonsensical.

This is an important case.  If a handful of individuals can declare a particular point of view completely irrational (a democratically expressed view), then we are not a republic.  We are an oligarchy.


2 thoughts on “The Reversal of Proposition 8: A Dangerous Precedent

  1. The 14th Amendment (adopted in 1868) was not used as a grant of authority for the federal courts to act as the supreme enforcers of ‘fairness’ in our country until the 1930’s. The power to enforce the terms of the 14th Amendment was given to Congress pursuant to Section 5, not to the Supreme Court to act untethered to Congressional enactment. Historically, the 14th Amendment was adopted in order that some provisions of the Civil Rights Act of 1866, intended to protect former slaves, could have a constitutional basis. It was in 1933, I believe, that the federal courts first appropriated to themselves, contrary to Section 5, the power to decide the subjects of 14th Amendment enforcement.
    This takeover of the enforcement of the 14th Amendment by the courts is purely a matter of pride. It is intellectual pride which deeply believes that “reason” trumps and should trump culture.

    In short, I agree with your point Dr. Baker.

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