Tuesday, September 18, 2007

Although we agree that such actions are discriminatory, we don't think it counts when it comes to fags

The Supreme Court of Appeals of Maryland upheld the state's ban against gay marriage today, in a 4-3 decision. I downloaded a copy of the decision from the ACLU's website and read it earlier today.

Keeping in mind that I'm not a lawyer, and have never even played one on the telly, I'm going to take a look at it. When I started reading it, I thought that the person who filed a motion to intervene "because 'the homosexual lifestyle [was] against [her] religion,' [and] allowing same-sex marriage would, in essence, burden unconstitutionally her First Amendment right to practice her religion" (described on page 6) was the craziest person involved. After reading the opinion, I'm not so sure.

As I summarized it to my parents earlier, the main decision is mostly a lot of hand-waving to distract people from the fact that they're blatantly discriminating against same-sex couples (or saying that it doesn't matter that they are). For instance, on page 3, footnote 6, they write
Through the efforts of Appellees' counsel, we are directed to 339 Maryland laws that provide for benefits, conditioned on marital status, which grant rights and responsibilities to married couples, to the effective exclusion of same-sex couples. They include, but are not limited to, the areas of taxation, business regulation, secured commercial transactions, spousal privilege and other procedural matters, education, estates and trusts, family law, decision-making regarding spousal health care, insurance, labor and employment, child care and child rearing, pensions, and the responsibilities attendant to spousal funeral arrangements. This is but a partial list of the benefits provided in Maryland to married couples and denied to same-sex couples prohibited from marriage.

So same-sex couples are being denied an impressive list of benefits, but they're not being discriminated against.

Or, they're being discriminated against, but that doesn't matter (pp 11-12):
we believe that Article 46 was not intended by the General Assembly and the Maryland voters who enacted and ratified, respectively, the Maryland ERA in 1972 to reach classifications based on sexual orientation, we conclude that Family Law § 2-201 does not draw an impermissible sex-based distinction.

The law is meant to discriminate against gays, not women, so it's okay!

Well, that's not entirely fair. The plaintiffs argued that the statute unfairly discriminated against people on the basis of sex: person A can marry person B if A were a man, but not if A were a woman. Or vice-versa. The judges, relying on the same logic that was overturned 40 years ago in Loving v. Virginia, disagreed. First of course they had to look at some of what people said about it, because
[i]f the text [of a constitutional provision] is ambiguous, the Court should first endeavor to ascertain its meaning from other parts of the instrument.

I'm not sure what's so unambiguous of "Equality of rights under the law shall not be abridged or denied because of sex", but apparently they were having trouble with it.

Anyways, just like Virginia argued that the 14th amendment wasn't meant to overturn anti-miscegenation laws, so the judges here argued that the ERA wasn't meant to overturn this law. They quoted Senator Birch Evans Bayh of Illinois on the federal ERA (p. 20) as saying
[t]he equal rights amendment would not prohibit a State from saying that the institution of marriage would be prohibited to men partners. It would not prohibit a State from saying the institution of marriage would be prohibited to women partners. All it says is that if a State legislature makes a judgment that it is wrong for a man to marry a man, then it must say it is wrong for a woman to marry a woman--or if a State says it is wrong for a woman to marry a woman, then it must say that it is wrong for a man to marry a man.

Which is nothing at all like Lyman Trumbull saying
But, says the Senator from Indiana, we have laws in Indiana prohibiting black people from marrying whites, and you are going to disregard these laws? Are our laws enacted for the purpose of preventing amalgamation to be disregarded, and is a man to be punished because he undertakes to enforce them? I beg the Senator from Indiana to read the bill. One of its objects is to secure the same civil rights and subject to the same punishments persons of all races and colors. How does this interfere with the law of Indiana preventing marriages between whites and blacks? Are not both races treated alike by the law of Indiana? Does not the law make it just as much a crime for a white man to marry a black woman as for a black woman to marry a white man, and vice versa? I presume there is no discrimination in this respect, and therefore your law forbidding marriages between whites and blacks operates alike on both races. This bill does not interfere with it. If the negro is denied the right to marry a white person, the white person is equally, denied the right to marry the negro. I see no discrimination against either in this respect that does not apply to both. Make the penalty the same on all classes of people for the same offense, and then no one can complain.

Further, I don't see how Bayh's logic doesn't also apply to this scenario: if the legislature makes a judgment that it is wrong for a man to marry a man, then it must say it is wrong for a woman to marry a man. Only makes sense.

Anyways. The judges constantly argued that the Maryland Equal Rights Amendment was meant to prevent discrimination against men and women as classes, not as individuals, and that the ban on gay marriage was therefore permissible because it treated both sexes equally. For instance, on p. 27:
Viewing the reasoning of Giffin in its context, it is clear that the Court's statement that "sex is not, and cannot be, a factor" related to distinctions drawn between men and women as classes.

Which makes very little sense when they quote Giffin in the next sentence as saying
[T]he equality between sexes demanded by the Maryland [ERA] focuses on 'rights' of individuals 'under the law,' which encompass all forms of privileges, immunities, benefits and responsibilities of citizens.

Giffin appears to in fact be about the rights of individuals, not classes. Yet on page 29 they conclude
Based on our precedents interpreting Article 46, we conclude that the Legislature's and electorate's ultimate goal in putting in place the Maryland ERA was to put men and women on equal ground, and to subject to closer scrutiny any governmental action which singled out for disparate treatment men or women as discrete classes.

And this law doesn't violate that, they say, because it treats both sexes equally (p. 34):
The limitations on marriage effected by Family Law § 2-201 do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statute, facially or in its applic ation, place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct.

They even approvingly quote cases from other jurisdictions to this effect (pp. 35-36):
See, e.g., In re Kandu, 315 B. R. 123 (Bankr. W.D. Wash. 2004) (upholding the constitutionality of the federal Defense of Marriage Act (DOMA) and stating, "[t]here is no evidence, from the voluminous legislative history or otherwise, that DOMA's purpose is to discriminate against men or women as a class. Accordingly, the marriage definition contained in DOMA does not classify according to gender . . . ."); Hernandez v. Robles, 855 N.E.2d 1, 6 (2006) ("By limiting marriage to opposite-sex couples, [the State] is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and Men are treated alike--they are permitted to marry people of the opposite sex, but not people of their own sex.") ... .

And again (p. 36):
The Supreme Court of Vermont, in Baker v. Vermont, 744 A.2d 864 (Vt. 1999), despite holding unconstitutional the exclusion of same-sex couples from the various benefits and protections that accompany marriage, rejected the argument that a statute limiting marriages to those between a man and woman constitutes sex-based discrimination. As the Vermont court stated, "[t]he difficulty here is that the marriage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex." Baker, 744 A.2d at 881 n.13. Because there is no "discrete class subject to differential treatment," according to the court's analysis, the prohibition on same-sex marriage did not draw a sex-based classification.

Of course, this notion of "equal discrimination" was dismissed in Loving:
[Virginia] argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.

And the notion of having to treat "classes" equally was also dismissed decades ago in a miscegenation suit, Perez v. Sharp. There the California Supreme Court ruled:
It has been said that a statute such as section 60 does not discriminate against any racial group, since it applies alike to all persons whether Caucasian, Negro, or members of any other race. (In re Estate of Paquet, 101 Ore. 393, 399 [200 P. 911].) The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals.

The appellees even noted this (p. 37):
Appellees counter the "equal application theory" by stating that the proper inquiry in this case is not whether Family Law § 2-201 singles out one sex or the other as a discrete class for disparate treatment. Rather, because constitutional rights are individual rights, the same-sex couples posit that this Court should examine how the legislative enactment affects individually each person seeking to marry.

The court dismissed the precedent set in Loving by nitpicking the details instead of the clearly-applicable principles involved. The opinion states (pp. 39-40):
The Supreme Court was able to see beyond the superficial neutrality of the legislative enactment, however, and determined that "[t]he fact that Virginia
prohibits only interracial marriages invo lving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy." Loving, 388 U.S. at 11, 87 S. Ct. at 1823, 18 L. Ed . 2d 1010. Thus, the Court in Loving determined that, although the statute applied on its face equally to all races, the underlying purpose was to sustain White Supremacy and to subordinate African-Americans and other non-Caucasians as a class.

Which has nothing to do with the issue at hand. The Supreme Court decided that a mere "equal application" didn't mesh with the 14th amendment, and that therefore the anti-miscegenation statute at hand must accomplish some state objective. They then concluded, as quoted above, that the state appeared to have white supremacy as its goal, and that certainly was not a legitimate objective. They did not decide that the "equal application" theory was inexcusable because of the racism involved, but in addition to it. So the court misinterpreted Loving and therefore decided that
Absent some showing that Family Law § 2-201 was "designed to subordinate either men to women or women to men as a class," ... the analogy to Loving [is] inapposite.

They approvingly quote someone else who misinterprets Loving to say
Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination.

Not true. Obviously racism was a large part of that case, and the court would have been remiss if they didn't point that out, but they found that the racial classification of the anti-miscegenation statute untenable even without that:
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races.

They also appealed to the Due Process clause, and noted that rights are held by individuals:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.


The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

All of which the court seems willing to ignore.

It should be noted that if the Maryland court were correct, then anti-miscegenation laws would be perfectly acceptable if they were facially neutral, preventing all races from marrying other races. And why not? Maryland's anti-miscegenation law did just that, in fact!
All marriages between a white person and a negro, or between a white person and a person of negro descent, to the third generation, inclusive, or between a white person and a member of the Malay race or between a negro and a member of the Malay race, or between a person of negro descent, to the third generation, inclusive, and a member of the Malay race, are forever prohibited, and shall be void; and any person violating the provisions of this Section shall be deemed guilty of an infamous crime, and be punished by imprisonment in the penitentiary not less than eighteen months nor more than ten years... .

So blacks, whites, and Malays were all forbidden from marrying each other. That would surely be constitutional, wouldn't it?


So that's mostly the first section of the opinion, which decided that preventing people from marrying on the basis of their gender didn't count as gender discrimination. And they conclude (p. 42) by approvingly quoting another case, which said:
[There] is no analogous sexual classification involved in the instant case because appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one that may be entered into only by two persons who are members of the opposite sex.

So denying people marriage based on their sex is not, in fact, denying people marriage based on their sex. Say, here's a thought exercise for you: redefine "apartment" to mean "a room or a group of related rooms, among similar sets in one building, designed for use as a dwelling by white people." Then preventing black people from renting one isn't denying them their rights because of their race, but because they don't fit the definition of people who are allowed to rent apartments! It's amazing how discrimination doesn't count when you define it as inherent to the process.

After concluding that discriminating on the basis of sex isn't discrimination, they also had to look at discrimination on the basis of sexual orientation. The third part of their opinion is spent arguing that sexual orientation is not a suspect class and does not deserve to be one, therefore discriminating on the basis of sexual orientation--while legitimate discrimination--still doesn't count. At least, it doesn't heighten the scrutiny level beyond rational basis (p. 49):
We find that sexual orientation is neither a suspect nor quasi-suspect class, and Family Law § 2-201 therefore is subject to rational basis review.

They list the factors that determine whether a group counts as a suspect class, saying (pp. 50-51) that they
include: (1) whether the group of people disadvantaged by a statute display a readily recognizable, "obvious, immutable, or distinguishing characteristics . . ." that define the group as a "discrete and insular minorit[y];" (2) whether the impacted group is "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process;" and (3) whether the class of people singled out is "subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities [to contribute meaningfully to society]."

I'll note something that bugged me when reading this that I don't think affects the ruling. They insert "readily recognizable" into the list of characteristics the group must have, instead of including that in their quote. In the footnote that they include about the immutable characteristics they quote
[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . .'

Again, nothing about being "readily recognizable". And later, p. 67, they do it again:
[W]e are unable to take judicial notice that gay, lesbian, and bisexual persons display readily-recognizable, immutable characteristics that define the group such that they may be deemed a suspect class... .

Is being "readily recognizable" really a criterion for the immutable characteristic? This makes me think that they inserted that by themselves to distinguish sexual orientation from race and sex, both of which are readily noticeable.

Anyways. The court admits that gays have, historically, been discriminated against (p. 55):
Homosexual persons have been the object of societal prejudice by private actors as well as by the judicial and legislative b ranches o f fed eral a nd state governments. Gay, lesbian, and bisexual persons likewise have been subject to unique disabilities not truly indicative of their abilities to contribute meaningfully to society.

And later (p. 59)
It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society.

They even provide a perfect example (p. 56):
In the 1950s, the Senate Investigations Subcommittee of the Committee on Expenditures in the Executive Department found that "homosexuals and other sex perverts" were unsuitable for employment by the federal government primarily because "[t]hose who engage[d] in overt acts of perversion lack[ed] the emotional stability of normal persons. In addition there [was, according to the Subcommittee,] an abundance of evidence to sustain the conclusion that indulgence in acts of sex[ual] perversion weaken[ed] the moral fiber of an individual to a degree that he [was] not suitable for a position of responsibility."

Despite this, they decide that sexual orientation doesn't fit the bill of a suspect class. Why? Because gays have not been "relegated to ... a position of political powerlessness" (p. 60):
In spite of the unequal treatment suffered possibly by Appellees and certainly a substantial portion of other citizens similarly situated, we are not persuaded that gay, lesbian, and bisexual persons are so politically powerless that they are entitled to "extraordinary protection from the majoritarian political process." To the contrary, it appears that, at least in Maryland, advocacy to eliminate discrimination against gay, lesbian, and bisexual persons based on their sexual orientation has met with growing successes in the legislative and executive branches of government.

Given that, I'd like to know what group would qualify as a "suspect group." Race and sex both have scored immense victories legislatively and judicially; it's clear that they're not "politically powerless." Should we say that because the NAACP exists that it's okay to discriminate on the basis of race?

They even note the irony of using the fact that gays have scored victories elsewhere as an excuse to deny them a victory here (p. 66 fn):
The irony is not lost on us that the increasing political and other successes of the expression of gay power works against Appellees in this part of our analysis of the level of scrutiny to be given the statute under review.

I wonder how that went. "Hey, guys? How can we use all their valid arguments as proof that they don't need us to declare in their favor?"

They also decide that sexual orientation doesn't count as immutable (p. 70):
In the absence of some generally accepted scientific conclusion identifying homosexuality as an immutable characteristic, and in light of the other indicia used by this Court and the Supreme Court in defining a suspect class, we decline on the record in the present case to recognize sexual orientation as an immutable trait and therefore a suspect or quasi-suspect classification.

This despite after quoting another court as saying that it is immutable (p. 67):
The Ninth Circuit indeed held there that "[s]exual orientation and sexual identity are immutable; [and that] they are so fundamental to one's identity that a person should not be required to abandon them."

They manage this feat of mental yoga by saying that the literature is still challenged and not accepted without question. Which can also be said about the heliocentric model of the universe. But more than that, they do another disgusting little switch in what they're discussing (pp. 68-69 fn):
No party addresses in its brief the immutability of sexual orientation and the implications of an answer to that query in determining the correct level of constitutional review to be applied to Family Law § 2-201. The issue of the immutability of sexual orientation, however, is the subject of a multitude of recent studies and nationwide debate. See J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 ARCHIVES GEN'L PSYCHIATRY 1089, 1093 (1991) (studying the similarities in sexual orientation between twin, non-twin, and adopted siblings, and concluding that identical twins are more likely than other types of siblings to have a similar homosexual orientation); Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Nan Hu & Angela M.L. Pattatucci, A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 SCIENCE 321 (1993) (finding evidence that there is a connection between male sexual orientation and a particular gene found on the X chromosome and sugg esting that male sexual orientation may be linked to maternal relatives ); Simon LeVay, A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 SCIENCE 1034-37 (1991) (finding that the interstitial nuclei of the anterior hypothalamus (INAH) 3, one of four cell groups found within the anterior hypothalamus region of the brain, is twice as large in heterosexual men as compared to homosexual men, and concluding that, at least in men, a heterosexual brain is structurally dimorphic from a homosexual brain). These reports, considered three of the most important in the field, however, are not without challenge. Their imperfections and limitations are well-documented. See generally Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN L. REV. 503, 529-46 (1994) (reviewing the limitations and flaws within the leading studies on the link between biology and sexual orientation); Ingrid Wickelgren, Discovery of the "Gay Gene" Questioned, 284 SCIENCE 571 (1999); Eliot Marshall, NIH's "Gay Gene" Study Questioned, 268 SCIENCE 1841 (19 95). Other studies have found contrary indicia and have concluded that culture and environment, at least in part, play a factor in the development of an individual's sexual orientation. See, e.g., Dean H. Hamer, et al., Genetics and Male Sexual Orientation, 285 SCIENCE 803a (1999) ("Sexual orientation is a complex trait that is probably shaped by many different factors, including multiple genes, biological, environmental, and sociocultural influences."); J. Michael Bailey, Michael P. Dunne, Nicholas G. Martin, Genetic and Environmental Influences on Sexual Orientation and its Correlates in an Australian Twin Sample, 78(3) J. OF PERSONALITY & SOC. PSYCHOL. 524 (2000). Even the authors, most notably Simon LeVay, have indicated that the biological studies do not establish that biology is the primary indicator of sexual orientation. LeVay, supra, at 1036 ("The discovery that a nucleus differs in size between heterosexual and homosexual men illustrates that sexual orientation in humans is amenable to study at the biological level, and this discovery opens the door to studies of neurotransmitters or receptors that might be involved in regulating this aspect of personality. Further interpretation of the results of this study must be considered speculative. In particular, the results do not allow one to decide if the size of INAH 3 in an individual is the cause or the consequence of that individual's sexual orientation, or if the size of INAH 3 and sexual orientation co-vary under the influence of some third, unidentified variable."). We by no means are able to form any sort of merits-driven conclusion based on the forgoing studies. We note only that there does not appear to be a consensus yet among "experts" as to the origin of an individual's sexual orientation.

Bold mine. Note the switch: they started out talking about whether sexual orientation is immutable, and conclude that the there's not a consensus about the origins of sexual orientation. Even if we accept all that was said there, having environmental or even sociocultural factors still doesn't mean that sexual orientation is changeable. The most recent study on that seems to indicate that people who try to change their orientation manage, for the most part, only to become abstinent rather than to change their orientation much.

Anyways. Next they decide that there's no fundamental right at stake by framing the situation as narrowly as possible. The header of section four declares in bold (p. 70) that
The Right to Same-Sex Marriage is Not so Deeply Rooted in the History and Tradition of this State or the Nation as a Whole Such That it Should be Deemed Fundamental.

See? It's not that gays want the right to marry, which everyone agrees is a fundamental right ("It is undisputed that the right to marry, in its most general sense, is a fundamental liberty interest that goes to the core of what the U.S. Supreme Court has called the right to 'personal autonomy.'", p. 72). No, they want a special right, the "right to same-sex marriage." Hell, why not go for broke and deny that Gita Deane has a fundamental "right to marry another woman by the name of Lisa Polyak"?

On page 74, after citing several other cases that describe the fundamental nature of the right to marry, they say
Determination of whether there is a fundamental right to enter into a same-sex marriage, however, does not end with a brief invocation of the cases outlining the importance of marriage generally and the other liberty interests that make up the funda mental rights panorama of personal autonomy. Before determining the fundamental nature of an asserted liberty interest, the right at stake should be defined precisely.

In other words, because they'd win the case if we accepted that they had a right to marry, we have to come up with a bullshit "right" that they're demanding so we can deny it to them.

But why do they make this distinction? You get three guesses.

...Yep, that's right. The old "marriage is about children" bullshit (p. 77):
All of the cases infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.

As long as we ignore that gay couples have children, this might make sense. However, the plaintiffs in this case (eight couples and a single man whose partner died) are raising a total of ten children. You'd think that would be the end of that crap, but nope. The judges seem determined to escape reality, saying (p. 81 fn)
The ability to bear or beget children is inherently a characteristic requiring at some level the participation of a man and a woman (at least until science demonstrates otherwise).

And the children that gay couples do have? Well, fuck 'em. If they had any sense they'd've been born to a straight couple.

They also say that same-sex marriage can't be a fundamental right because it never has been before. No, really. They say (p. 91) that because Lawrence v. Texas didn't declare a right to same-sex marriage, they don't have to, either. Well, no shit Lawrence didn't declare same-sex marriage bans unconstitutional; if it had, we wouldn't be in this situation in the first place. They also make an appeal to tradition (p. 92): "Even a quick glance at the laws of Maryland indicate that this State has long regarded marriage as a union between a man and a woman." And even a quick glance at the laws of Maryland indicate that your State long regarded marriage as a union between two people of the same race. Hell, Maryland had one of the first miscegenation statute on the books, all the way back in 1664! Way predates your 1973 law against same-sex marriage, don't it?

Well, having decided that:
  1. Discrimination on the basis of sex isn't discrimination on the basis of sex
  2. Discrimination on the basis of sexual orientation doesn't count
  3. Gay people don't have a fundamental right to marry like normal people do
the court declared that they were going to apply rational basis scrutiny. What does that mean? Well, essentially, it means that the judges were going to rule against the gay couples. Here's what the plaintiffs would have had to do to get the judges to rule in their favor (p. 97):
This burden requires Appellees to "'negative every conceivable basis which might support [the statute],' whether or not the basis has a foundation on the record."

Yeah. They would have had to come up with every possible rationale for this statute and show that all of them were in no way aided by the statute in question.

The appellants, meanwhile, came up with these as the interests that the law supposedly serves (p. 98):
Appellants offer in support of Family Law § 2-201 two primary governmental interests: (1) the State has a legitimate interest in maintaining and promoting its police powers over the traditional institution of marriage and its binary, opposite-sex nature; and (2) the State has a legitimate interest in encouraging marriage between two members of the opposite sex, a union that is uniquely capable of producing offspring within the marital unit.

The court notes (p. 106 fn) that the first rationale is a circular rationale, so they examine the second one. Of course, to do so they have to ignore the ten children being raised by same-sex couples, but we've already found that this isn't a big deal for them. And there are no surprises for us (p. 99):
The question remains whether there exists a sufficient link between an interest in fostering a stable environment for procreation and the means at hand used to further that goal, i.e., an implicit restriction on those who wish to avail themselves of State-sanctioned marriage. We conclude that there does exist a sufficient link.

And a little bit later (pp. 99-100) they write:
This "inextricable link" between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).

Bold mine. "So, sure, advances in reproductive technologies mean that everything we just said isn't true, but we're going to ignore that so we can keep these fags in their place."

The plaintiffs make numerous sensible arguments (pp. 100-01):
Appellees urge in response, quite convincingly, that Family Law § 2-201 is not related rationally to the governmental objective of fostering optimal relationships for procreation because it is at once over-inclusive and under-inclusive. Appellees argue that it is over-inclusive because children may be born into same-sex relationships through alternative methods of conception, including surrogacy, artificial insemination, in vitro fertilization, and adoption. The statute is also under-inclusive, according to Appellees, because not all opposite-sex couples choose to bear children, or are able to do so because of infertility or otherwise. Lastly, Appellees posit that the marriage statute is not linked sufficiently to the interests in procreation because allowing same-sex couples to marry will not impact interests in procreation in that "[o]pposite-sex couples will continue to bring children into their families through 'traditional' procreation regardless of whether same-sex couples are permitted to marry."

So first they note that it isn't true that the marriage of same-sex couples is linked with children: many gay couples have children, and many straight couples don't. And then they note that even if you don't buy that, preventing same-sex couples from marrying has no relation to promoting marital procreation by opposite-sex couples. There is no rational link. But that's not enough for this court--oh no.

Well, at least part of the court. I'd like to note that one of the judges apparently recognized something I concluded a while ago--even if we accept that traditionally gays were justifiably prevented from marrying because they couldn't reproduce, that doesn't mean anything with modern reproductive technologies (p. 101 fn):
Judge Battaglia's dissent, in response to the State's assertion that it has an interest in marriage "as an institution of transcendent importance to social welfare," posits that, "until the recent advances in assisted reproductive technology, there was a close[,] albeit imperfect fit[,] between opposite-sex marriage and the inherent biological fact that reproduction of our species could result only from the sexual union of a man and a woman. . . . The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today."

But how does the rest of the court weasel out of this one? After all, they acknowledge "There is some merit to these arguments" (p. 103). Well, basically, they cite a bunch of statistics that support the contention that the nuclear family is not the only living situation, and perhaps not even the dominant one, in America. They conclude (pp. 104-05)
[R]easonable doubt exists that the traditional model of what constitutes a family does not constitute the majority of households any longer.

But instead of addressing the claims--that the goal of raising children in a married household is not achieved by preventing same-sex couples from marrying--they turn it into a quibbling over percentages (p. 105):
A legislative enactment reviewed under a rational basis standard of constitutional review need not be drawn with mathematical exactitude, and may contain imperfections that result in some degree of inequality. Piscatelli v. Bd. of Liquor License Comm'rs, 378 Md. 623, 644-45, 837 A.2d 931, 944 (2003) ("[A] state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.'") (citations omitted); Whiting-Turner, 304 Md. at 352, 499 A.2d at 185 ("[A] classification [subject to rational basis review] having some reasonable basis need not be made with mathematical nicety and may result in some inequality").

No, but you could overturn it because the law in question has no relation to the stated goal! But no, that would be too intelligent for them. And to drive home the point that they're simply ignoring everything the plaintiffs have to say about other people raising children, the opinion goes on to say (pp. 105-06):
In such a situation, so long as the Legislature has not acted wholly unreasonably in granting recognition to the only relationship capable of bearing children traditionally within the marital unit, we may not "substitute [our] social and economic beliefs for the judgment of legislative bodies . . . ."

What? No "advances in reproductive technologies notwithstanding" inserted after the word "traditionally"? I'm shocked!

Guh. That's a lengthy discussion of the ruling. Now that I've spent the last several hours reading that trash, I'm going to get very drunk.

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