Marriage and the State’s Interest

 Federal Judge Vaughn Walker ruled on Wednesday that
Proposition 8, the rejection of same-sex marriage, a proposition voted for by
California voters earlier in the year, unreasonably discriminates against gay
men and women.  Let’s look at some
of Walker’s claims and discuss what the future may bring.

 Given that the trial is based on the Equal Protection
Clause, it’s interesting to note that Judge Walker used the lowest standard of
scrutiny he could: rational basis scrutiny. Choosing this lower level of scrutiny
is considered a safe move, given that higher courts may be unlikely to apply
intermediate or strict scrutiny to the legislation in question.

 The rational basis test, in practice, is seldom lethal to a
piece of legislation. When applying the rational basis test, the burden is on
the plaintiffs to show that the law in question (in this case, Proposition 8)
is not rationally related to a legitimate state interest. Now, that’s a pretty
large burden–if the defendants could show some legitimate state interest that
Proposition 8 intended to preserve, and could further show that Proposition 8
was in some way rationally related to this interest, Proposition 8 would be
upheld. Knowing this, the fact that Judge Walker found that Proposition 8
failed the rational basis test is pretty surprising.

Judge Walker wrote in his opinion, “Proposition 8 cannot
withstand any level of scrutiny under the Equal Protection Clause. Excluding
same-sex couples from marriage is simply not rationally related to a legitimate
state interest.” But Judge Walker went wrong in failing to acknowledge what
proponents of Prop 8 argue is the legitimate state interest at stake: the
rearing of the next generation of citizens. 

As to what this means for the legality and constitutionality
of same-sex marriage, most agree that this decision won’t be the final word.