R and R on Gay Marriage

I love it when the New Republic does this. In a web-only segment, TNR's website has a back and forth between Jeff Rosen (their legal affairs aditor) and Jon Rauch (from Brookings). The debate's worth a read.

Jon's initial point:

Contrary to common belief, the Constitution does not require all states to recognize every state's marriage. (That's because of a longstanding "public policy exception" to the Full Faith and Credit clause.) Whatever one's qualms about the Massachusetts decision, it's a decision for Massachusetts to make. To avoid a national culture war in an area where consensus is currently unattainable, gay marriage should be left to the individual states. And that's what will happen if (1) we don't pass a federal constitutional amendment banning gay marriage and (2) the U.S. Supreme Court, for once, butts out.

So my recommendation? There are moments in our nation's history when our mighty federal government must rise to the challenge of doing nothing. Now is one of them.

And Jeff's (paraphrased):

Jeff's addresses the case more directly than does Jon. He finds that the opinion is sloppy, and (he notes rhetorically) apparently written to inflame social conservatives and inspire a backlash.
His critique of the opinion is this: There are generally two ways that courts have found a constitutional right to gay marriage-
1) Marriage is a fundamental right, so barring two people from marriage gets strict scrutiny from the court (the law has to reflect a compelling government interest and be narrowly tailored to such interest). There is no compelling gov. interest in keeping gays from being married.
2) Barring gay marriage is a form of sex discrimination. If Mr. X were a woman, he could marry Mr. Y...but being a man prevents X from such marriage.

(Rosen runs through his relative opininos to the above arguments).

In the Massachusetts Supreme Court decision, though, the Court uses neither of these somewhat paradigmatic arguments. Rather, the Court determined that there is no rational basis for the bar against gay marriage. (Any law that's ever passed must have at least a rational basis. If a court finds no such basis, the law's no good. BUT - as Rosen emphasises - rational basis is very very easy to show. For the most part, rational basis review means the court allows the law.)


On the rational basis route:
A quick note in response to Rosen:
Rosen's great concern is that the court pulled the novel stunt of finding no rational basis for the gay marriage bar. One is reminded, though, of Kennedy's opinion in Romer v. Evans. There, the Supreme Court invalidated a Colorado law that repealed all local laws in the state that prohibited sexual orientation discrimination. Kennedy simply found no rational basis:

the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation.

Romer, 517 U.S. 620, 632.