Wednesday, August 4, 2010

The Irrational Voters of California

A federal judge has overturned California's Proposition 8, an constitutional amendment approved by the voters.  (You know: voters, the people with the illusion that they have authority to amend the state constitution.)  The decision is here.  The essence of it is that marriage is a fundamental right, and therefore subject to strict scrutiny evaluation.  But Judge Walker insists that the ban on same-sex marriage doesn't even pass "rational basis" standards: meaning that there is no rational basis for the voters to decide that marriage is limited to one man, one woman.

What constitutes a "rational basis"?  Shortly after Lawrence v. Texas (2003) was decided, striking down Texas' law prohibiting homosexual (but not heterosexual) sodomy, Sen. Sanctorum made the point that there are lots of behaviors that our society criminalizes that might not necessarily pass a rational basis test.  He gave some examples.  Contrary to what those who like to quote him out of context, Sanctorum did not say that homosexuality was the same as bestiality, or incest, but to point out that the standard that many judges seem to want to use for homosexuality strikes down effectively all laws that seek to impose a Judeo-Christian moral standard.  Now, if that's your theory, fine, say so directly.  By that standard, not only do laws against homosexuality have to go away, and same-sex marriage imposed on the states, but the laws against bestiality, incest, polygamy, etc. need to go away as well. 

If not, why not?  A lot of people want to keep those other laws, and strike down anything that puts homosexuals in a different category--and so they grab onto arguments like no "rational basis."  Consistently applied, how many of our laws survive?  Why are laws against sex in public places valid?  What's the rational basis for prohibiting that?  What's the rational basis for prohibiting public nudity, or defecating in the middle of the street (as long as you clean up afterwards)?  And do you really want to live in a society like that?  Or is this just an excuse to strike down laws for one favored group, while leaving the rest of those laws in place?

1 comment:

  1. Andrew Sullivan's book, "Virutally Normal", is commonly considered the best work that lays out the case that homosexual relations are, well, virtually normal.

    Those of you who have read the book will agree that, by changing a few words here and there, you can have, "Virtually Normal: The Paedophile Edition".

    What then?