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The same-sex marriage argument that Justice Scalia fears

Page 2 of 3 -- The case came up again in 1996 when the Supreme Court heard Romer v. Evans, which involved a challenge to an amendment to the Colorado constitution that ordered cities to exclude gay people from anti-discrimination legislation. Drawing on Cleburne, the Court said the Colorado amendment failed the rational basis test, because it subjected gays to "disfavored legal status" out of prejudice.

Cleburne and Romer exemplify "rational basis-plus," Karlan and Rubenstein argue. When politically vulnerable groups like gays and the mentally retarded challenged a law for discriminating against them, the Court's analysis began with the question: Does the state have a legitimate purpose for treating these people differently from others? In addition, Karlan and Rubenstein argue based on other precedents, courts should be especially careful about equal-protection challenges to laws that involve fundamental rights, like marriage. In other words, rational basis review shouldn't be a free pass for the state when the reasons for a law appear fishy, and when an important right is on the line.

Karlan and Rubenstein unveiled their theory of rational basis-plus in a friend-of-the-court brief filed on the side of the plaintiffs in Lawrence v. Texas, the 2003 Supreme Court case in which two gay men successfully challenged the constitutionality of their conviction for sodomy. "It wasn't so much that we were brilliantly saying something no one had said before," says Rubenstein. "We were taking the Court's jurisprudence over the last 15 years and putting it back together in a slightly different way, as scholars do."

Rational basis-plus didn't carry the day in Lawrence -- the right to privacy did. But in a concurrence that gave the plaintiffs a sixth vote, Justice Sandra Day O'Connor interpreted Cleburne and Romer just as Karlan and Rubenstein had (though she didn't give them credit). "When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause," she wrote.

Yet if O'Connor opened the door for rational basis-plus, she didn't exactly invite it to stay for tea. In her concurrence, O'Connor tacked on a concluding paragraph saying that rational basis-plus didn't mean that states would be forced to grant marriage licenses to gay couples. In light of the state's interest in "preserving the traditional institution of marriage . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group," she asserted.

But O'Connor may be overconfident in thinking that rational basis-plus stops exactly where she says it does. Or at least that's what Justice Scalia thinks. "`Preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples," Scalia pointed out in his dissent. O'Connor's reasoning, he continued, left state marriage laws "on pretty shaky grounds."   Continued...

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