October 6, 2006

"Rational basis" and the "origami project."

As we were talking (and talking) yesterday about whether there's a rational basis for excluding same-sex couples from the benefits of marriage, a California appellate court issued a decision analyzing exactly that. Despite the numerous comments here yesterday, I did not think anyone had articulated an impressive basis for the law. Nevertheless, "rational basis" is a low standard, so I didn't think that a court would have much trouble declaring that it's found one -- assuming that the court was inclined to leave things to the legislature.

Here's how the California court put it (PDF):
[T]he opposite-sex requirement in the marriage statutes is rationally related to the state’s interest in preserving the institution of marriage in its historical opposite-sex form, while also providing comparable rights to same-sex couples through domestic partnership laws.... (See Lawrence v. Texas, supra, 539 U.S. at p. 585 (conc. opn. of O’Connor, J.) [stating in dicta that “preserving the traditional institution of marriage” is a legitimate state interest].)...

In addition to tradition, the Attorney General argues the marriage laws are justified by a related state interest in carrying out the expressed wishes of a majority of Californians....

Of course, the mere fact that a majority wishes it so cannot save an otherwise unconstitutional law. Majoritarian whims or prejudices will never be sufficient to sustain a law that deprives individuals of a fundamental right or discriminates against a suspect class.... But, in reviewing a challenged law under the rational basis test, we must give due deference to the Legislature’s considered judgment....
So there you have it. (Satisfied, Professor Schweber?)

An emailer points out that the concurring opinion by Judge Parrilli quotes a phrase from blogdom's James Lileks:
If respect for the rule of law is to be maintained, courts must accept and abide by their limited powers. The Constitution is not some kind of “origami project” to be twisted and reconfigured to accomplish ends better left to the democratic process.
Of course, it takes no origami level expertise to fold the judge's words back on themselves and accuse the court of twisting and reconfiguring the law to avoid interfering with what the majority wants. The key phrase is "better left to the democratic process." The judges think this matter is better left to the democratic process, and the Constitution can be folded into that shape. Predictably, the judges pat themselves on the back for this handiwork. They have, they tell us proudly, upheld the rule of law by accepting their limited powers. But we onlookers know all too well how to refold that one and say that the rule of law requires not only that a judge resist acting where there is no legal right, but also that a judge must say what the law is and do what it requires.

25 comments:

Simon said...

" the rule of law requires not only that a judge resist acting where there is no legal right, but also that a judge must say what the law is and do what it requires."

Very true. That is why I reject the attempt by liberals such as Paul Gewirtz and Lori Ringhand to define judicial activism in terms of a judge's willingness to strike down a law; see comments here. "It is not Judicial Activism to strike down a statute. The act itself is inherently neutral; it is a tool, [a] part of the judicial power. It cannot be judicial activism to strike down a statute that actually is unconstitutional[;] [r]ather, a decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional."

As to whether the Constitution of California compelled judges to act in the instant case, while I am rather sceptical of that, I will leave to commentators more familiar with the Constitution of California than I.

Balfegor said...

I have no idea whether the court was obliged to act here, but I think that saying that rational basis = implementing legislation the majority wants is kind of a cop-out. If that were the case, why have courts been contorting themselves into pretzels (or origami) to articulate some reason -- any reason -- things could possibly be constitutional?

Anyhow, I don't think we've had any compelling gay marriage decisions yet, for or against. Unless one slipped in since the last time I looked at them.

Howard Schweber said...

The California judge's reasoning is perfectly circular: "[T]he opposite-sex requirement in the marriage statutes is rationally related to the state’s interest in preserving the institution of marriage in its historical opposite-sex form." So there is a rational basis for preserving existing practices solely because they are existing practices? Then why pretend that we are engaging in constitutional analysis at all?

Balfegor said...

Prof. Schweber:
existing practices solely because they are existing practices?

I think that ignores some of what is particular about the concept of "marriage" -- it's not "existing practices" in the sense of a particular regulatory accomodation or anything like that. If we look back to thewhole paen to the ancient glory of marriage from the end of Griswold v. Connecticut, the court makes the point that "marriage" is more older and more fundamental than anything the state can do, ergo the state has no business poking its nose into a marriage. That same kind of reverence for marriage as a living tradition could also leave a court reluctant to do anything to interfere with it, as it has come down to us, itself.

Sort of as with things like the National Anthem, the Pledge of Allegiance, or the "ceremonial deism" of our public spaces, there may be a legitimate interest preserving the nation's traditions (even comparatively novel traditions, e.g. the "God" references in the Pledge) even though in other circumstances we might find similar state practices constitutionally suspect. One might think that marriage, being rather more fundamental to civil society than things like a national anthem, a pledge of allegiance, or even the Constitution itself, might get that "tradition" bonus in spades.

Especially when that's weighed against the impact to gays/lesbians (essentially: "I can't marry who I want to"), the stakes involved don't seem especially dire, unlike with segregation (material impoverishment, educational degradation) or slavery (beatings, killings, total loss of liberty), so that tradition may weigh more heavily in the balance than it would have done in those previous situations.

That's not to say I necessarily agree with the Court's reasoning there. But it's a legitimate argument, in a way I don't think that "carrying out the expressed wishes of a majority of Californians" is.

Crank said...

I do think that the same-sex marriage opinions from the New York Appellate Division - First Department and the New York Court of Appeals have been eminently well-reasoned.

Richard Dolan said...

Professor Schweber asks "why pretend that we are engaging in constitutional analysis at all?"
Well, the reason is that there's not much analysis one can really offer here, and all that's in play all around is pretense. "Rational basis" analysis gets nowhere in this context because the game is fixed.

The argument in favor of the traditional definition of marriage always reduces to a variant of: "heterosexual unions are better than gay unions." Lots of different social contexts and outcomes are posited by those who hold that view -- child bearing and rearing, social/familial stability, etc. But the judgment inherent in the use of "better" here reflects a value preference; it's essentially a moral judgment, not an economic or sociological or psychological observation about the world around us that might admit of measurement. The comments on these threads that try to address those issues constantly switch back and forth between economic/sociological/psychological contentions, and overt value preferences and moral judgments, without ever coming to grips with the core problem inherent in the key term "better." If one cares to take the tradition itself seriously, at its core it contends: "gay sexual unions are bad."

The argument against the traditional definition just substitutes the opposite value judgments in place of the traditional ones. And those who hold this view posit lots of social contexts and outcomes to show that gay unions are just as "good" as heterosexual ones, on whatever economic/sociological/psychological scale they think applies.

Without an objective standard to measure what counts as "good" or "bad" here, any discussion at this level is obviously going nowhere. So what is the standard? Ann's comment about "origami" interpretations of law, and how simple it is to turn them around, just shows the obvious result in a situation where agreed-upon objective standards are lacking. The point is not that moral propositions all stand on the same footing, or that some moral arguments aren't better than others, but that those judgments can only be made where the parties have agreed upon first principles.

Beginning with Griswold, the Court started down the road where it treated sexual autonomy as a constitutional value. Where that came from, other than as the imposition of the value preferences of five or six superannuated lawyers, beats me. Griswold was a bold expansion in terms of theory, but announced in a factual context that was utterly non-controversial. Roe came next and changed everything. In Bowers, the Court did a bit of a U-turn, and then another one (after a change in membership) 15 years later in Lawrence.

It's a fool's errand to pretend that "rational analysis" in this context makes any sense, or had anything to do with the results of those cases, when what's in play are competing value preferences and moral judgments. Since the constitution never says anything about these issues, there is no standard that all must accept in analyzing them. Instead, there's just competing theories about how to make sense of the equal protection clause (a clause that lived happily with egregious sex-based discrimination in voting rights for its first 60 years). Long ago, dissenting in Lochner, Holmes noted that the Constitution did not incorporate Spencerian economics. The wisdom of that lesson is not confined to a particular school of economics; it covers all of the various theories of justice, equality, goodness, or anything else smart people are constantly inventing in order to bring order and meaning to their lives. The only exception is where the constitutional text itself provides a substantive standard (e.g., racial discrimination is bad). But lots of people, including Holmes' successors who may enjoy wielding power, keep forgetting that lesson.

Educated people today don't think the traditional judgment that "gay sex is bad" is a polite thing to say, mostly because the religious and moral traditions from which that value judgment originated have lost all force for them. In the end, that's the rationale for Lawrence. Your comment about the "circularity" of the California decision captures that view perfectly. The decision is circular only to the extent that it winks and nods at the "rational basis" framework that it purports to apply in a context where it cannot rationally be applied. Instead, the court just takes the traditional understanding as representing a long standing value preference that courts have no business supplanting with a competing value preference. As the court rightly said, that's a job for the democratic process.

As it happens, I share the value judgment that there is no inherent moral difference between gay sex and heterosexual sex. But that's just me. And I've never thought that my value preferences and moral judgments should be imposed on others in the guise of constitutional imperative.

So the game is fixed by the way the question is posed. You will never find a "rational basis" for the value laden moral judgments at the core of this dispute, because those judgments don't admit of objective, empirical analysis. You might as well ask for the "rational basis" for the view that Mozart's music is more beautiful than Beethoven's. Many reasons can be adduced for one view or the other, but there's no standard you will ever devise to tell you which view is "correct."

Dave said...

What Richard Dolan said.

Seven Machos said...

Here's the rational basis:

1. Gay marriage simply is not recognized by the State. Gay marriage is legal. This is not a case where buying contraceptives is illegal, or sodomy is illegal, or people get suspended prison sentences for interracial marriage.

2. Recognition by the State gives certain benefits to a certain group of people. This group is not a constitutional class. Immutable characteristics make such classes. No one is immutably married. This is a group that has made voluntary decisions, much like people who buy electric cars and get tax breaks.

3. The State's recognition of heterosexual marriage only has a rational basis because the State has a goal of perpetuating itself and its instiutions in a stable, continuous way. The way it has chosen to do this is by encouraging self-recreating, semi-independent, somewhat unified, blood-related units. Families.

4. Wanting to create these units naturally, with no artifice whatsoever, is a rational choice. Maybe it's not the choice you'd make, but it's rational because it's easier, cheaper, less likely to lead to legal complications down the road, and (with child birth) less likely to lead to legal or health complications resulting from birth.

5. The state encourages the creation of the units by giving tax breaks (and an apparently crucial limited testimonial immunity); by creating estate law that mimics what most people in self-recreating, blood-related units do anyway; by encouraging employers to provide people within the units with insurace coverage when one of them works for the company, etc.

6. There is a rational basis for the law and for what the government is doing to make the law work. The connection is that the benefits provided will, in fact, encourage people to create the self-recreating, semi-independent, somewhat unified, blood-related units the government wants created in a cheap, efficient, not-legally-entangled way.

7. If a government outlaws gay marriage outright, we have a different constitutional problem. But that's not what is happening (not that some of the people care to see the difference). The anaology is: People with electric cars get tax breaks. "Hey, I own a Humvee! Where is my tax break. This is unfair! This is wrong! The government has no right to make my Humvee illegal!"

Edward said...

Here’s something I’ve never understood about the “rational basis” argument used to deny equal marriage rights to gay people:

The argument seems to be first, heterosexual marriage is better than gay marriage, and second, if SSM is legalized, some bisexuals who would otherwise marry heterosexually will opt for gay marriage, and society will thereby suffer because straight marriages are better and more beneficial than gay marriages would be.

What strikes me as peculiar (and peculiarly obnoxious) is that, at its core, this argument depends entirely on compelling people to behave the “right way.”

It’s not only obnoxious for the government to compel intelligent adults, who are perfectly capable of making their own decisions in these matters, to choose one form of marriage over another.

It’s also obnoxious because it flies in the face of the entire emotional and psychological premise undergirding marriage, namely that marriage is a hugely important event in one’s life, an event that must be freely entered into by both parties. The true freedom of the choice to marry one person to the exclusion of all others must be maximized if the emotions of love, commitment, equality, and reciprocity on which marriage is based are to have any real force.

If bisexual Jane marries her friend Jack only because the law won’t allow her to marry her true love Jill, then the entire foundation of her heterosexual marriage with Jack is horribly compromised from the start.

If, however, bisexual Jane chooses to marry Jack in spite of the fact that the law would allow her to marry Jill, to whom she feels some attraction, then Jane takes full responsibility for her choice of traditional marriage over gay marriage. The entire process of marital decision-making then becomes more dignified, more mature and sounder.

Yes, Jane’s marriage to Jack will actually rest on a more secure foundation by her knowing that she could have married Jill but, after careful consideration and be exercising her own free choice, she opted for Jack. Jane will never reach a point in her marriage to Jack where, due to some falling out that they have, she blames the government for in effect forcing her hand to marry Jack by limiting her marital choices.

Furthermore, based on news reports that I’ve read about these same-sex marriage cases, government lawyers no longer claim that gay relationships are inherently harmful, either to the people in the gay relationships or to the society at large. Government lawyers just say that same-sex relationships are inferior in certain ways to straight marriages and offer fewer advantages, not that they’re dangerous per se.

Of course, lawyers arguing in defense of same-sex marriage disagree and present lots of evidence that same-sex marriages would be just as beneficial.

So if there’s unanimity that same-sex marriage would not be harmful per se, but only disagreement as to the relative merits of gay and traditional marriage, the best way (in fact, the only accurate way) to resolve this debate is by legalizing same-sex marriage and allowing the marital marketplace to determine the answer.

In virtually all other areas of life, the U.S. believes that free speech, free markets, and free and fair competition with maximum choice will produce the best outcome for individuals and for society. If SSM poses no inherent harms or risk, then the marketplace should be allowed to determine its value and worth relative to traditional marriage.

Nothing else would be rational.

Seven Machos said...

Jesus Christ, Edward! SINGLE-SEX MARRIAGE IS NOT ILLEGAL. THEREFORE IT DOES NOT NEED TO BE "LEGALIZED."

Yes, I am shouting. What part of this do you not understand?

Balfegor said...

Edward:

It’s not only obnoxious for the government to compel intelligent adults, who are perfectly capable of making their own decisions in these matters, to choose one form of marriage over another.

If one is a libertarian, that's probably the tack one takes in general. But think about it. Here, we're not talking about compulsion -- no one telling anyone to marry a particular way or face the dire consequences (e.g. imprisonment, fine, etc.) It's a matter of incentives, of carrots, rather than sticks.

You have the same kind of thing everywhere in the law. E.g. we want people to make the choice for home-ownership, so we have adjusted the tax code to benefit home-owners over non-home owners. We want to put our thumb on the scales in favour of child-bearing, so we have built in the child tax credit. And so on and so forth. These aren't cases of compulsion.

Mortimer Brezny said...
This comment has been removed by a blog administrator.
Mortimer Brezny said...

So there is a rational basis for preserving existing practices solely because they are existing practices? Then why pretend that we are engaging in constitutional analysis at all?

That isn't even accurate. The courts says there is a rational-basis for preserving an existing practice of a high pedigree that a present majority of the people want to preserve. In other words, marriage was good then, marriage is still good now, and most people like it the way it is.

Your burden, professor, is to prove that marriage the way that most people want it cannot possibly be good. That's a crazy argument.

Balfegor said...

Re: Richard Dolan:
Griswold was a bold expansion in terms of theory, but announced in a factual context that was utterly non-controversial.

Was it? I wasn't alive then, so I don't know. But my understanding of the situation is that the court invokes a right of privacy surrounding the marital bed . . . and uses it to find the prosecution of a saleswoman who sold an illegal contraceptive to some married people unconstitutional. No? I mean, Griswold isn't part of the married couple here; she's just an activist posing as a merchant or something, and she's the one in trouble, not the married couple.

Marital bed, privacy, fine. All respectable traditional stuff. But a marital right of privacy that stretches to include a salesman's counter? I can see the argument, but I can't imagine it wouldn't be uncontroversial. Consider if they were using contraband drugs as a sex aid or something.

Edward said...

Balfegor: I’ll provide two, totally independent answers to your post about compulsion.

First, the issue of compulsion can actually be dispensed with in making my argument. As long there is unanimity that same-sex marriage poses no danger per se, but only sincere doubt about its merit relative to traditional marriage, then the argument still stands that the best and only way to resolve the question of their merits relative to each other is by legalizing same-sex marriage.

The principle that by maximizing choice the highest quality decision-making ensues means that the government should actually rush to legalize SSM, because almost regardless of the number and quality of the same-sex marriages that result, heterosexual marriage itself will automatically be strengthened, because the process that people go through to enter into a traditional marriage will be more open, more mature, better thought out, and more dignified.

I know this argument seems somewhat cold and calculating, and it sometimes even seems that way a bit to me, because I’m gay, and I most certainly have my passionate reasons for wanting to marry.

Nevertheless, I’ve always believed that one strength of the SSM movement is that there exist many, many varied arguments to make on its behalf, and the idea of the benefit of a larger, more open marital marketplace is just one of many arguments that can be made for SSM.

I also fully believe in the truth of this argument, in spite of the fact that it seems somewhat cold and calculating.

My second response is simpler: I most definitely think that there is an ignoble compulsion involved when the government tells people that only heterosexual marriage will be legal. To me, marriage is one of life’s essentials, almost like food and water. I could write a whole book about what I mean when I say that marriage is one of life’s essentials, but I think the point is close enough to being self-evident that I’ll say no more about it for the time being.

Just as it would be an outrageous affront to liberty for the government to tell people that the only food items they will be permitted to eat for rest of their lives are green beans, cabbage and pork rind, I think it’s an outrageous affront to liberty for the government to tell people that heterosexual marriage is the only legally recognized marriage available to them. I actually think it’s a greater affront to liberty to limit marriage in this way than to severely restrict food availability.

And no, I don’t think polygamy should be legalized, because there is abundant evidence that polygamy is harmful per se, unlike same-sex marriage. My ideas about a maximally open and free marital marketplace only apply to the choice between gay and traditional marriage.

Mortimer Brezny said...

My ideas about a maximally open and free marital marketplace only apply to the choice between gay and traditional marriage.

Here's the thing. Maybe gay marriage is not currently subsidized by the state because there simply isn't sufficient demand for it. A few professors and a few activists does not a vibrant market make.

Seven Machos said...

This is one of the many places where libertarianism fails. Not only is there not a demand for gay marriage. There is an enormouse demand against it. It is exactly this desire on the part of society for lack of flux, for lack of dynamism, and for things to be the way they are because that's the way people want them to be that is the demise of libertarian politics.

Steven said...

Polygamy is not de jure marriage, but nobody gets prosecuted in California for having two live-in lovers, giving each other powers of attorney, reaching property-sharing arrangements etc., etc. There's no question of legalization, merely one of state recognition and certain state-granted privileges. Just like in the case of homosexual relationships.

So, what's the reason recognition and privileges are given to certain de facto marriages?

After that is identified, then it's possible to see if the reason applies to same-sex de facto marriages. If it doesn't, there is the rational basis right there -- the purpose of marriage de jure is to promote X, and since same-sex marriage does not promote X, it isn't included in marriage de jure.

But it also means that if marriage laws in general do not support or promote X, there's no reason for the state to recognize any marriage. It is not sufficient to identify why "marriage is one of life’s essentials", but why and how state recognition of the marriage contributes to that end.

Revenant said...

This is one of the many places where libertarianism fails. Not only is there not a demand for gay marriage. There is an enormouse demand against it.

The libertarian position on marriage is that the state shouldn't be involved in deciding what marriages are or aren't valid or in encouraging or discouraging various kinds of social contracts. People managed to successfully get married and raise stable families for millennia before the government got involved; they can do so again.

So while both libertarians and gay marriage activists agree that gay and hetero marriage should be treated equally by the state, they differ in that the former mean "neither should be given benefits" and the latter mean "both should be".

It is exactly this desire on the part of society for lack of flux, for lack of dynamism, and for things to be the way they are because that's the way people want them to be that is the demise of libertarian politics.

Not all libertarians want a dynamic society. Many are quite reactionary about the type of society they want. The real failing of libertarianism is that there's just no getting around the fact that the overwhelming majority of people want the government to give them lots of benefits, paid for by somebody else.

Revenant said...

Polygamy is not de jure marriage, but nobody gets prosecuted in California for having two live-in lovers, giving each other powers of attorney, reaching property-sharing arrangements etc., etc.

It may be a fact that such prosecutions are rare or nonexistant in California, but so far as I know they are *possible* here. I know they are in Utah -- you can be prosecuted for polygamy even if none of your "marriages" were state-sanctioned ones.

So in that sense, at least, polygamists are even more oppressed than homosexuals are.

downtownlad said...

I'm not bothered by these judicial opinions. Each state has different laws and different Constitutions and I don't pretend to understand the judicial history in each state.

I'll add that this is the exact opposite of those on the opposing side - those who claim to be experts at Massachusetts law and teh Massachusetts Constitution.

Balfegor said...

I most definitely think that there is an ignoble compulsion involved when the government tells people that only heterosexual marriage will be legal. To me, marriage is one of life’s essentials, almost like food and water.

This seems a little odd to me, but okay. My question then is -- why is the state the source you're going to for "marriage"? The state is not a god. It's not the final word on what is, when it comes down to it, a social institution emerging out of a tradition far more ancient than any government. If marriage means as much to you as you say it does, then go ahead and get married. No one's going to penalise you for it, as Seven Machos never tires of pointing out.* The bureaucrats who serve the state won't be obliged to recognise your marriage, and won't force other people to recognise your marriage. But if marriage is that important to you, does it matter that much that a bunch of bureaucrats acknowledge it and punish other people if they decline to?

It's one thing to complain that you don't get the marital testimony privilege, or that you don't get visitation rights, or the tax benefit. These are concrete things you can point to (well, comparatively so). But they're also not things that anyone is going to point to and say "Coming under that particular tax code provision is one of life's essentials!" or "The right to avoid testifying against my husband, without fear of punishment, is one of life's essentials!." These concrete privileges may be nice, and they are things the state can give you. And because they're the kinds of things the state can hand out like party favours, they're also the kind of thing you can say "This isn't fair" about, when other people get them and you don't. They're also incidental to the social fact of a marriage, and . . . they don't seem to be what you're talking about.

But the state can't give you what you seem to be talking about.

[* I recall hearing that there were some employment cases where lesbians bureaucrats who had got married in their private time were fired shortly after, and claimed they had been fired for getting married to other women. I don't know what happened here, but I'm pretty sure that's not allowed. Nevertheless, it's not necessarily the case that you won't suffer consequences for getting married (although I think that is against the law), but it's not like miscegenative marriages before Loving v. Virginia, or polygamous marriages today, where the consequences involve getting thrown in jail. And of course, nothing prohibits social opprobrium after you get married -- the state can't control peoples' feelings, after all.]

Daryl Herbert said...

What strikes me about the origami comment is not the metaphor itself, but the column as a whole.

Even just looking at the paragraph in which the origami comment is seated, there's some pretty heated rhetoric about judicial philosophy. Not very judicious language (we don't read Lileks because he sounds like a judge; if we wanted that we would read judicial opinions in our spare time)

The premise of the column is that Republicans lamely surrendered to Democrat wolves and gave up on getting the judges we deserve. It's a conservative screed against the compromise that ultimately got us John Roberts and Sam Alito. So the column itself is not only right-wing, but the message has not been vindicated.

Why, then, would he choose that specific column? Does he simply have a strong affinity for the origami metaphor? Or is he sending a message, "hey, Federalist Society dudes, tell the president to put me on the federal bench!"

Jonathan said...

I just think that the whole "rational basis" arguments for keeping tradition marriage is akin to the idea of keeping precedent. Why, after all, do we follow precedent in the common law?

Is it for consistency or continuity? Is it a historical sense of Western justice? Perhaps it is. And perhaps the same answer given to those who fight the idea of precedent can be given who might try to overturn the traditional definition of marriage on rational grounds.

"Custom should be followed only because it is custom, and not because it is reasonable or just. But people follow it for this sole reason, that they think it just." ~~ Pascal

buck turgidson said...

Professor Schweber's comment concerning the California Court's circularity stands on its own. However, let me suggest a few more problems in the California decision both in itself and its applicability to the Wisconsin issues.

The Court refers to "traditional marriage" without definining the term in any reasonable sense, other than stating that it is "opposite-sex". This is at least problematic, given that traditions change. Some see "traditional morality" as something that their lunatic pastor tells them on Sunday, while others consider traditional Western morality to have been derived in no small part from the standards of Ancient Greece. Of course, the latter would present significant problems for anyone advocating singularity of opposite-sex marriage.

But, without even going so far as Ancient Greece, one can easily verify that the traditional roots of marriage are economic, not religious. Polygamy was once rampant, but that's almost beside the point. The issue in same-sex marriage is economic and social equality, not the open display of alternative sexuality.

But let's look at Wisconsin. What the court fails to note is that "traditional opposite-sex marriage" is a common-law marriage, not a formal state institution, which is a fairly recent development, or a religious one, which predates the former by only a couple hundred years, at least, as far as Christian Europe and America is concerned. It is the Big Lie of the evangelical orators that traditional marriage has religious roots. Yet, there is no question that the source for same-sex banning constitutional amendments is religion-based discrimination.

The California Court deferred to Legislature while explicitly removing majoritarianism as a reasonable argument. Wisconsin did just the opposite (like Ohio and Michigan)--the Legislature has abdicated its responsibility by introducing the constitutional amendment with a cynical retort that they "want the people to decide".

Furthermore, the California Court clearly stated that the rational basis for the preservation of the traditional marriage applies only in conjunction with similar economic opportunities being left available to same-sex couples. This is not what the Wisconsin amendment supplies us with--in fact, it openly demands abolition of any attempt to strive for economic equality for same-sex couples. Even Prof. Schweber's opponent in the debate reluctantly revealed that the amendment is very likely to accomplish just that. It will also lead to significantly increased litigation on the subject, since the language of the amendment is ridiculously vague.

And all of this follows the proponents claims that they want to eliminate litigation and protect marriage from religious courts. What a complete hogwash!