Why the Proponents of a Gay Marriage Ban Will Soon Be Speechless

The law, lawyers, and the court.
Feb. 9 2012 7:05 PM

Is That All You Got?

How the proponents of a gay marriage ban just ran out of arguments.

(Continued from Page 1)

He’s only getting started, however. Smith goes on to explain that under a rational-basis review, the government can create classifications and need not “actually articulate at any time the purpose or rationale supporting its classification.” Indeed, he argues the courts must support these classifications so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” To make matters even easier on the government, Smith adds that it need not produce evidence that the classification is rational, and “may be based on rational speculation or empirical data.”

Smith’s reasoning does an incredible thing: It produces a justification for why the proponents of a gay marriage ban need offer no justification. Where Cooper could only deliver a “because-I-say-so” theory of jurisprudence, Smith attempts to come to the rescue with a “because-someone-says-so” theory of his own.

Perhaps sensing that he may require a higher power as well, Smith then turns to Justice Antonin Scalia—specifically his argument in the dissenting opinion in Lawrence v. Texas that states can use their police powers to regulate “morals.” Of course, Smith must acknowledge that Scalia’s argument isn’t the law—it was, after all, the dissenting opinion.


Nonetheless, Smith concludes that there are rational reasons to ban gay marriage in California. These reasons are, as he spells them out, “a responsible procreation theory” and “an optimal parenting theory.” Judge Smith concludes that Prop 8 “preserves the fundamental and historical purposes of marriage” and notes that the proponents of Prop 8 “offer many judicial opinions and secondary authorities” supporting both the responsible procreation theory and the optimal parenting theory. He could tell you about them but, well, why drag fact into the case at this juncture? Having lowered the bar so far already, it doesn’t matter if these theories are persuasive or not. All you need to know is that they exist. As Smith lays it out, since both sides “offer evidence” and the question of optimal parenting is still “debatable”—and will remain debatable as long as no fact or evidence is required to prevail in the debate—the tie goes to the state. Gay marriage can be banned.

So there you have it: That’s the best case that can be made against gay marriage. An appeals court dissent that rests on the premise that states needn’t act rationally, or offer evidence of rationality, or even be rational in creating classifications, so long as someone publishes a study and someone else believes it. That’s the best they’ve got, it seems.

That is not legal argument or empirical evidence. It is the death rattle of a movement that has no legal argument or empirical evidence. Nobody disputes the fact that Americans opposed to gay marriage believe passionately in their ideas and arguments. But that doesn’t necessarily mean those arguments should win in a court. The best thing that could have happened in the Prop 8 case just happened. The dissent has no clothes.



The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke

Does Your Child Have “Sluggish Cognitive Tempo”? Or Is That Just a Disorder Made Up to Scare You?

The First Case of Ebola in America Has Been Diagnosed in Dallas

Windows 8 Was So Bad That Microsoft Will Skip Straight to Windows 10


Mad About Modi

Why the controversial Indian prime minister drew 19,000 cheering fans to Madison Square Garden.

Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

Don’t Panic! The U.S. Already Stops Ebola and Similar Diseases From Spreading. Here’s How.

Parents, Get Your Teenage Daughters the IUD

The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  News & Politics
Sept. 30 2014 9:33 PM Political Theater With a Purpose Darrell Issa’s public shaming of the head of the Secret Service was congressional grandstanding at its best.
Sept. 30 2014 7:02 PM At Long Last, eBay Sets PayPal Free
Sept. 30 2014 7:35 PM Who Owns Scrabble’s Word List? Hasbro says the list of playable words belongs to the company. Players beg to differ.
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Sept. 30 2014 3:21 PM Meet Jordan Weissmann Five questions with Slate’s senior business and economics correspondent.
Brow Beat
Sept. 30 2014 8:54 PM Bette Davis Talks Gender Roles in a Delightful, Animated Interview From 1963
Future Tense
Sept. 30 2014 7:00 PM There’s Going to Be a Live-Action Tetris Movie for Some Reason
  Health & Science
Medical Examiner
Sept. 30 2014 6:44 PM Ebola Was Already Here How the United States contains deadly hemorrhagic fevers.
Sports Nut
Sept. 30 2014 5:54 PM Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.