Wednesday, September 16, 2009

Rational Basis and Constitutional Line Drawing in the Same-Sex Marriage Debate

09/16/09 Volokh Conspiracy, by law professor Orin Kerr / ADF Alliance Alert:

Professor Kerr favors legalization of same-sex marriage. He considers a standard of constitutional review - the rational basis test - for laws that limit marriage to heterosexual couples. He offers his interpretation of how it might be applied to defense of marriage acts - without endorsing its application:
When the state takes on the task of defining who should receive a government benefit, and that definition requires a great deal of complicated linedrawing, it is presumptively rational for a legislature to draw lines in ways that match traditions or common contemporary practices. As the amount of required linedrawing increases, and it becomes harder to justify one specific line over another, it becomes rational for a legislature to simply mirror the status quo rather than craft a new approach ... My claim — albeit only a very tentative claim, as this isn't my area and I haven't looked closely at the cases — is that the fact that some line needs to be drawn, and the legislature unimaginatively drew it in some relatively traditional way, itself helps provide a rational basis for the legislature's approach.

1 comment:

Rick Xiao said...

The following is my reply to Professor Kerr’s recent blog article entitled “Rational Basis and Constitutional Line Drawing in the Same-Sex Marriage Debate."

Professor Kerr’s tentative argument appears to be based on the legislature’s wisdom of “drawing lines”——i.e., creating classifications. As such, the analytical frame of the whole thesis, from a constitutional standpoint, should be equal protection.

Contrary to Professor Kerr’s contention, “to draw lines in ways that match traditions or common contemporary practices” is a decidedly insufficient justification for banning same-sex marriage. After all, not long ago in this country, it had been many states’ “traditions [and] common contemporary practices” to criminalize interracial marriages. But it is well settled that a State cannot shield its discriminatory laws from constitutional scrutiny on the basis of tradition alone. Indeed, “[i]f a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed.” Varnum v. Brien, 763 N.W.2d 862, 898(Iowa 2009).

In the same vein, if the government should, as Professor Kerr has asserted, give “deference to preexisting practices” and “adopt the traditional way of doing things,” then marriage restrictions based on minority, bigamy, or consanguinity could be hardly justified as rational because these practices have exited——and still exist——in many countries, cultures, and religions throughout human history.

Therefore, Professor Kerr’s tentative argument that “the traditional limitation of marriage to opposing sex couples ITSELF helps provide a rational basis for using the traditional definition of marriage as between a man and a woman” (emphasis added), would not withstand scrutiny even under the rational basis standard.

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