Let's say you're a justice on the Washington State Supreme Court. You have a nice life, a quiet life. Cozy chambers. Huggable clerks. And then in March of 2005, you hear oral arguments in a case about the state ban on gay marriage.
Eighteen months later, the dumb decision is still pending. You've tossed. You've turned. What to do?
If you vote to strike down the ban, the president will take your name in vain. You'll be vilified as an "activist" in the national media. Bloggers will publish photos of your children and pets. You'll have to apologize for the courage of your convictions for the rest of your career.
If you vote to uphold the ban, on the other hand, you'll get to join your colleagues on the New York and Nebraska courts, who just did the same thing. You'll also find yourself in the warm embrace of your buddies on the Georgia and Tennessee courts (who ultimately ruled against gay marriage in recent weeks on narrower, more technical, terms). Nobody will excoriate you in the op-ed pages. Instead of causing widespread fury, you will unleash, at most, widespread resignation.
Still, you feel bad. You hold no personal animus toward gay people. You even think there is something slightly mean-spirited behind your state's Defense of Marriage Act. You talk it over with your wife/husband/clerks. It's a pickle. Months pass.
Until you hit upon the solution: Shift the blame. Make the legislature the bad guys. Find a way to frame the ban on gay marriage that makes it impossible to strike down. Rule that unless the ban is utterly insane, it's constitutional. Suggest that as long as the legislature passed it, it must be rational. Use the word "deferential" six times.
The key to appearing reasonable will be to vilify the dissenters. You'll want to use your majority opinion to emphasize that judges who vote their "personal views" are behaving like "legislators." Quote liberal lion Supreme Court Justice John Paul Stevens for that proposition. Then condemn—without quite using the words "judicial activist"—the dissenters for having been "uncharacteristically … led to depart significantly from the court's limited role when deciding constitutional challenges."
Be sure to tell your "readers unfamiliar with appellate court review" that your state's decision to ban gay marriage is solely the fault of the legislature. Because you yourself, of course, still love everyone.
Easy? Not really. Because even if you find that there is no "fundamental right" for gays to marry; even if you find that they are not a protected class deserving of special constitutional scrutiny; even if you find that the ban did not violate the state "privileges and immunities" clause, all that constitutional high-stepping still leaves you where the Massachusetts Supreme Judicial Court was only starting its own constitutional analysis—when it faced the same basic question about same-sex marriage in 2003: You still need to do the hard work of analyzing whether there is any rational reason for banning gay marriage.
That is, after all, why you became a judge. You are there to sort out whether the state's articulated goals fit the law they've enacted. You'll need to be wily: You can start by insisting that any law is "rational" so long as it contains some nouns and verbs. You can quote the U.S. Supreme Court for the proposition that: "In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous."
Still, much depends on how you frame that same rationality question. You can borrow from the Massachusetts court, which asked whether "government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the state's authority to regulate conduct." Or, you can turn it upside down like the New York State Court of Appeals and ask "whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples."
But the core question for judges—judges, not legislators—is still whether there is a rational reason for this ban. That's not a matter of personal morality, or religious preference, or taste. It's a factual legal inquiry, albeit broad-based.
The Massachusetts legislature offered three reasons for banning gay marriage: 1) "providing a favorable setting for procreation"; 2) "ensuring the optimal setting for child rearing"; and 3) "preserving scarce state and financial resources." The New York legislature offered substantially similar state objectives: 1) whether, for "the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships" by providing an "inducement" for those heterosexual parents to marry; and 2) whether "it is better, other things being equal, for children to grow up with both a mother and a father."
Both courts thus asked about the same question: Did the ban on gay marriage rationally achieve the legislatures' stated goals of promoting procreation and optimal families?
The Massachusetts court found they were not. First it held that procreation is not the sole purpose of marriage ("people who cannot stir from their deathbed may marry"). Then it found that a state interest in "optimal child rearing" arrangements cannot rationally be met if the children of gay parents are precluded from the protection of marriage laws.
New York's highest court went the other way. The majority of the judges felt that a legislature could reasonably find that "unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes, and thus that promoting stability in opposite-sex relationships will help children more." They also found that "a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like."
As the Washington State Supreme Court proved today, it almost doesn't matter, in the end. Because once you concede that only patently moronic bans may be struck down, you'll arrive at the same result.
To do this, the majority first points out that the "court may assume the existence of any conceivable state of facts that could provide a rational basis for the classification"; that "empirical evidence" is not necessary; and that a statute can be rational even if it is over- or underinclusive, and even when it creates some "inequity."
Read: Only if the ban was enacted by insane people can it fail constitutional review.
The Washington court goes on to find that state legislators may reasonably seek to use marriage as a carrot for randy heterosexual couples who—for complex biological reasons—get knocked up inadvertently: "The legislature could have found that encouraging marriage for opposite-sex couples who may have relationships that result in children is preferable to having children raised by unmarried parents." This logic holds even though gay couples have children, and heterosexual couples are childless, because "[s]uch over-or under-inclusiveness does not defeat finding a rational basis" for the law.
Next, the Washington majority finds that the stated interest in rearing children in a home headed by "opposite-sex parents" is legitimate. Why? Marriage must be limited to straight couples because "children tend to thrive in families consisting of a father, mother, and their biological children." Children also "tend to thrive" in Cleveland. Oh wait, that one is irrelevant.
The court refuses to take seriously its obligation to engage in rational review by repeating, as if sinking deeper and deeper into a state of yogic meditation, that, "at the risk of sounding monotonous, we repeat that the rational basis standard is extremely deferential."
Even the most deferential review should grapple with whether banning gay marriage really encourages straight marriage; whether there is something about marriage that magically lures heterosexual parents into its grasp—something that would evaporate if it were also extended to gay parents. Even deferential review that was also deaf, dumb, and blind would do more than just assert that gay marriage is illegal because kids "thrive" in straight homes. That claim is not just slightly over- or underinclusive, as the majority would have it. It's nonresponsive. Or, as the dissenters put it, better than I have: "denying same-sex couples the right to marry has no prospect of furthering any of those interests."
To get to a just answer on the question of gay marriage one need not—and perhaps should not—go as far as the Massachusetts court went when it said that, "The history of constitutional law is the story of the extension of constitutional rights and protections to people once ignored or excluded." It would have been enough for the Washington justices to say that when irrational laws are justified with irrational reasons, the courts should be brave enough to label them as such.