[hackinthebochs]

I voted for gay marriage in the last election in my state, but honestly that rationale seems extremely strained. Yes, government has a legitimate interest in defining marriage as it confers certain benefits to certain people. The "rational basis" test should not be one that questions the validity of the exclusions/inclusions within the law, but rather if the government has a legitimate interest in law in question. It should not have been the burden of the proponents to prove that the government had a rational basis for excluding gays from marriage.

[wpietri]

If you think that's the case, then work to appeal the 14th amendment, which grants all people, including gay and lesbian ones, equal protection before the law.

Seriously, go and read the decision on Prop 8, or the recent one on the Michigan Marriage Amendment. Both are clear and readable explanations of why gay people start out equal, and if you want to make laws against them, you have to prove that there's a rational basis for the state to do so.

[hackinthebochs]

>Both are clear and readable explanations of why gay people start out equal

Not being able to marry a same sex person is not "not equal" (pardon all the negatives). The fact that we have to rely on judges to offer strained arguments to cause any meaningful cultural shift is a bug in our system, not a feature. Judges should not be seen as the savior of the republic. The proper place for this to change is through legislation. All of this is assuming the definition of marriage being between a man and a woman was ever codified into law before this became a point of contention--not sure if I've ever actually seen such a thing.

[wpietri]

There's no mystery here. Everybody starts out equal before the law. To pass a law that singles out a group of people, you have to at least have a rational basis for doing so. If the state is going to have civil marriage, then to exclude gay people from it, you need a rational basis for doing so. There isn't one. The majority doesn't get to have an opinion on whether group X is deserving of the right of equal protection; it they could it wouldn't be a right.

Regardless, in the case of California, gay people could get married before Prop 8, so if you are worried about redefining marriage, it's Prop 8 that should be your problem.

[hackinthebochs]

>Everybody starts out equal before the law

Yes, gays were certainly free to marry opposite sex people if they chose to.

>you need a rational basis for doing so

Government has an interest in promoting "positive" social policy through the power of taxation. Seems like a rational basis to me. The question then becomes is an opposite sex marriage more beneficial to society than a same sex marriage. This is something that should be decided directly, not through the rational basis test.

According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.

[wpietri]

> Yes, gays were certainly free to marry opposite sex people if they chose to.

This is a glib, assholish way of putting a point, a point that makes no sense if you phrase it more clearly. Civil marriage is about two people deciding to form a partnership together. For example, you could claim that an interracial marriage ban is perfectly equal, because a black person can marry any other black person they want, and a white person can similarly marry a white person. But that's gluing a thin paper smiley-face on over a white robe and hood; it deceives nobody.

> This is something that should be decided directly, not through the rational basis test.

I can't imagine what you mean by that. The rational basis test requires that laws have a... rational basis. That's a pretty low bar. If you read the MMA decision or the Federal Prop 8 decision, you'll see that those trying to prevent gay marriage had no rational basis for doing so. In particular, they could demonstrate no harm to society. They tried, but the science wasn't on their side.

> According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.

That is incorrect. Prop 8 initially stripped all marriage rights, exactly as it was intended to. The proposition was necessary because California's constitution provides for equal protection, so a constitutional amendment was required to make an exception so that gay people could be treated unequally.

Once it made it to the CA Supreme Court, civil union rights were restored, and it was only the term "marriage" that was left as a sop to the will of the voters. But even that was seen -- correctly in my view -- as a violation of the 14th amendment.

[hackinthebochs]

The comparison between interracial marriages doesn't impress me: https://news.ycombinator.com/item?id=7534146

> Civil marriage is about two people deciding to form a partnership together

A marriage has traditionally been understood to be a partnership between a man a woman. Do you deny this? Yes, I'm aware of the muddled and unsavory history of the institution of marriage. But it most recently has been understood to be a partnership between a man and a woman. Society's views are evolving, as it has done in the past. But those who would prefer to keep the traditional understanding are not hateful monsters.

>The rational basis test requires that laws have a... rational basis.

That's not what it means (according to links you provided regarding the "rational basis test"). Its simply a question of whether the government has a basis/interest in the law in question. It's analogous to a jurisdiction test. The government certainly does have an interest in defining marriage since it confers certain benefits. To claim the government has no rational basis for defining who can receive tax benefits is highly suspect. It's also rather strained to reference one opinion from one court as the final word on a matter when there have been other opinions that did not claim a rational basis exclusion. Clearly, this isn't obvious or settled in any way.

[dnr]

I'm curious what you think of this line of reasoning:

http://www.volokh.com/2012/02/07/same-sex-marriage-bans-and-... http://www.slate.com/articles/news_and_politics/jurisprudenc...

[hackinthebochs]

I'm not a fan of that reasoning. When framing the question in terms of "marrying opposite sex", it cannot be concluded that this rule violate equal protection (men and women are equally allowed to marry the opposite sex). When framing the question in terms of what an individual can do (Jane cannot marry Susan whereas John can), then it appears you violate equal protection. This scenario tells me one thing: that this reading of the issue is missing critical nuance.

Whenever a rephrasing of an issue can lead to the opposite conclusion, its clear that critical nuance is being stripped away. The fact is a marriage is a coupling of (at least) two people; one cannot meaningfully speak of an action of marriage of a single person. So framing the question in terms of what an individual can/can't do seems to be the error. Restrictions on marriage can only be meaningfully applied to the set of all individuals involved; and there is no way to phrase it in this way that leads to an equal protection violation.