Originally Posted by TripletDaddy (Post 287788)

Thanks UD. I believe you are correct.

rational basis sounds correct.

I need to bust out my Con Law notes.

Originally Posted by UtahDan (Post 287786)

Sort of. What he is saying is that if you put something on the ballot in California to amend the constitution (which it is very easy to do there) then it becomes the constitution of that state. Once it is part of the constitution, all a judge can do is interpret it. Never strike it down, at least on the state leve. Recall that the Ca SC found that there was a right to gay marriage under its state constitution, not the federal constitution. One of the things to keep in mind is that a state constitution can give its citizens more rights than the federal constitution, but never fewer. The federal constitution is the floor, which is why all the states whose highest cousrt ahve found the right does exist there have found that it does under the constitution of that state. So change the constitution in a way that is only subject to one interpretation and you fix the issue.

The further issue is whether under the federal constitution you have created a "classification" that runs a foul of the fourteenth amendment (equal protection clause) which has several layers for deciding whether a classification is permissible depending on what it is. The SCOTUS has never found that sexual orientation is a "suspect class" (that is, in laymans terms, you have to have a really good reason for making that classification) like race or religion or even a quasi-suspect class like gender. For any of those a state must show a really, really good reason for having a law that treats people differently based on one of those.

Everything else, all other classifications, just meet a rational basis test. That is, if there is any rational reason at all the law treats people differently then the law is okay. So far, sexual orientation is in this latter class. So any articulable reason for a law (or a state constitution) that treats them differently will suffice.

The SCOTUS, however, could decide to expand its definition of "suspect class" to include sexual orientation and no doubt it is going to get asked to do exactly that at some point. Hope that is helpful.

Originally Posted by creekster (Post 287790)

Thanks for the complete answer, mine was too terse. Here is my question though: Does this impicate sexual orientation? IOW, isn't the argument that everyone can get married but marriage is defined as man + woman. If you choose same gender you can have a union, but not a marriage. So why does sexual orientation, even if given some level of heightened scrutiny, matter?

I will admit that I am not really up to date on the legal issues here, just asking a quesiton.

Originally Posted by TripletDaddy (Post 287791)

UD, I was under the impression that sexual orientation is quasi-suspect, hence laws that prohibit discrimination based on sexual orientation.

Is this off base?

Originally Posted by YOhio (Post 287796)

O'Connor's concurrence in Lawrence v. Texas stated that sexual orientation would be held to rational scrutiny in the context of marriage. Scalia's dissent argued that gender restrictions would ultimately fail even under the rational basis test due to the majority holding.

Whether or not P8 fails, the SCOTUS will have to address this matter at some point and it will likely hinge on whether the Full Faith and Credit Clause protects SSM. The 1996 DOMA explicitly states that it doesn't so that will be the main challenge point.

Originally Posted by YOhio (Post 287796)

O'Connor's concurrence in Lawrence v. Texas stated that sexual orientation would be held to rational scrutiny in the context of marriage. Scalia's dissent argued that gender restrictions would ultimately fail even under the rational basis test due to the majority holding.

Whether or not P8 fails, the SCOTUS will have to address this matter at some point and it will likely hinge on whether the Full Faith and Credit Clause protects SSM. The 1996 DOMA explicitly states that it doesn't so that will be the main challenge point.

Originally Posted by UtahDan (Post 287799)

Okay theres the answer then. We don't really know what SCOTUS would do. :-)