MORE ON MASSACHUSETTS DECISION: Eve replies to Barry Deutsch, part two

Because the court thinks it has found a restriction of the right to marry, it now considers whether this restriction rests on a "rational basis." What does that mean? The court tells us, "For due process claims, rational basis analysis requires that statutes 'bear[ ] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.' ...For equal protection challenges, the rational basis test requires that 'an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.'"

The "due process" test is one of two things. Either it is an invitation to rampant philosopher-kingship, by which courts can strike down any law they think is wrong (because after all, the justices have personally decided that the law has no "real and substantial relation to the public health, safety, morals" etc.); or it is a fairly low-bar test similar to the "equal protection" one.

In order to come to the conclusion the court majority draws--that SSM or maybe something almost exactly like it must be instituted--you have to believe that everyone who disagrees with you is blinded by irrational prejudice. That would include a majority of likely Massachusetts voters; almost certainly a majority of Massachusetts legislators; every major presidential candidate from both main parties; Maggie Gallagher, Elizabeth Marquardt, and, well, me! You not only have to believe that Maggie's, Elizabeth's, and my arguments are wrong; you have to believe that no one could think they were right for reasons other than irrational anti-gay animus. And you also have to believe that making that judgment of our rationality and bias-level is an appropriate task for the court--a court which, I suppose we are meant to believe, is itself fully objective and in no way slave to the biases of the judging class....

The second half of my piece is an attempt to delineate a "rational basis" for the position that marriage is essentially procreative, in order to prove that you could buy this claim without reference or appeal to opposition to homosexual acts. The point of that section would probably have been clearer if I had, you know, mentioned it or something. That would be my second mistake.

I know that I haven't addressed several of Barry's specific criticisms. One reason this reply is so late is that I tried to reply briefly to Barry's second and third points, but realized that a) it was probably more important, and more interesting for the reader, to talk about my substantive problems with the Goodridge decision, and b) replying fully would entail laying out an entire theory of jurisprudence, addressing the complexities of textualism and the tensions between text and intent--and I can't imagine that you all really want me to do that here! Just as Barry is right that the Goodridge decision doesn't rest on the legislation I discussed, so my opposition to that decision doesn't rest on my account of that legislation either. If anyone wants a more specific or in-depth reply on unanswered jurisprudential questions, email me and I will post something on my own website, not here.
posted by Eve at 5:24 PM | link

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