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Is It Crazy to Call Californians Irrational?

The weak case against gay marriage

Jacob Sullum
August 11, 2010

At first blush, the notion that there is no rational basis for California's ban on same-sex marriage, as U.S. District Judge Vaughn Walker ruled last week, seems extreme. But the more you consider the arguments presented by the ban's supporters, the less far-fetched Walker's conclusion looks.

Walker ruled that Proposition 8, the 2008 ballot initiative that excluded gay couples from the legal definition of marriage, violated the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." He deemed the case presented by the measure's supporters so weak that it failed even the "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class" such as race (although he also argued that gay marriage bans implicate both).

Proposition 8's defenders, Walker noted, emphasized "its consistency with the 'central purpose of marriage, in California and everywhere else,…to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.'" Yet when Walker asked Charles Cooper, the attorney defending Proposition 8, how recognizing same-sex marriages would impair the asserted state interest in procreation, he at first said it was "not the legally relevant question," then essentially conceded the issue, saying, "Your honor, my answer is: I don't know. I don't know."

In their trial brief, Proposition 8's supporters promised to identify 23—count 'em—negative consequences of "redefining marriage to encompass same-sex relationships." During the trial, however, they presented just one witness to substantiate this point: David Blankenhorn of the Institute for American Values, who in Walker's judgment "provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate."

Blankenhorn conceded that children raised by adoptive parents fare at least as well as children raised by biological parents, that recognizing gay marriages would benefit gay couples and their children, and that such recognition would be "a victory for the worthy ideas of tolerance and inclusion." Although Blankenhorn nevertheless worried that giving gay couples the same legal status as straight couples might exacerbate the "deinstitutionalization" of marriage, he never explained why.

During his closing argument, Cooper returned to the theme that "responsible procreation is really at the heart of society's interest in regulating marriage." When Walker asked him to cite the evidence that had been presented during the trial to back up this claim, Cooper replied that "you don't have to have evidence of this point."

But you really do, especially since procreation, responsible or not, has never been a requirement for a marriage license. The government routinely recognizes marriages between people who have no intention of reproducing or who are physically unable to do so.

Walker concluded that "the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex." Since the "rational basis" test requires that discrimination be "rationally related" to "a legitimate government interest," that conclusion alone was enough to overturn Proposition 8.

Walker's reasoning is similar to that of the 1996 decision in which the Supreme Court ruled that Colorado's Amendment 2, a ballot initiative that prohibited state and local bans on discrimination against homosexuals, failed the "rational basis" test. Like the Court in that case, Walker found the asserted reasons for the challenged law to be so weak that the true motivation had to be a moral judgment concerning homosexuality.

Since Amendment 2 was ostensibly aimed at protecting property rights, freedom of association, and freedom of contract from bans on private discrimination—as opposed to requiring official discrimination—it had, if anything, a stronger basis than Proposition 8.  But even if both cases were wrongly decided, one thing is clear: Opponents of gay marriage will ultimately lose the public policy debate if they can't do a better job of defending their position.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. This column first appeared at Reason.com.

© Copyright 2010 by Creators Syndicate Inc.


Jacob Sullum is Senior Editor


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