Prop 8 Case's Ratio Decidiendi

Mike Dorf has a characteristically illuminating analysis of the Prop 8 decision over at Dorf on Law, as well as (at fuller length) on Findlaw.  The first is located, and the second is accessible, here: http://www.dorfonlaw.org/2010/08/rationality-review.html .

Mike agrees with the outcome, but is troubled by the means by which the Judge got there.  

For what my own higly inexpert opinion is worth, I continue to wonder why we do not treat civil union as the apt civil category, and treat marriage solely as the religious category that I've always thought it to be.  In such case it would be hard - for me, at any rate - to see denial of civil union to any couple, of sound mind that has reached the age of consent, as capable of surviving rationality review.  And it would be just as hard - for me, at any rate - to see any justification for state interference with ecclesial organizations' defining their more specific conceptions of the separate category of marriage in what ever manner was consistent with their theologies.  But I've written at some length on this already, so I won't belabor the point here.

Here's a post from last November, complete with amusing video clip from a wonderful film: http://www.dorfonlaw.org/2009/11/tale-of-two-marriages.html .

Cross posted at Mirror of Justice

Comments

[Louis Vuitton Outlet]

Well, Jimbino, I'm sure you must be right about much of this, including my myopia. For while I've little doubt that as a country we're very many of these -ists that you enumerate, I've quite lost sight of what any of it has to do with the merits of what I'm actually proposing.

I think that you might have lost sight of something too, however. For if you look back to what I wrote, you'll note that I did not endorse the ownership/stakeholding link (though I do think it bears sufficient prima facie plausbility to warrant empirical investigation of the sort that folk at the Wash U. Social Welfare dept like Michael Sherraden do a lot of), but simply cited it as an oft-heard rationale that can rationalize more than some right-wing users of it seem to appreciate.

[Justin Bieber Supra]

A constant conversation I have with some, by no means all, of my European colleagues is to argue to them: don’t apply rules to the Government of Israel that you would never dream of applying to your own country. In any of our nations, if there were people firing rockets, committing acts of terrorism and living next door to us, our public opinion would go crazy. And any political leader who took the line that we shouldn’t get too excited about it, wouldn’t last long as a political leader. This is a democracy.

[Cheap True Religion Jeans]

In this world there are only two tragedies. One is not getting what one wants, and the other is getting it.

[Bob Hockett]

Well, Jimbino, I'm sure you must be right about much of this, including my myopia. For while I've little doubt that as a country we're very many of these -ists that you enumerate, I've quite lost sight of what any of it has to do with the merits of what I'm actually proposing.

I think that you might have lost sight of something too, however. For if you look back to what I wrote, you'll note that I did not endorse the ownership/stakeholding link (though I do think it bears sufficient prima facie plausbility to warrant empirical investigation of the sort that folk at the Wash U. Social Welfare dept like Michael Sherraden do a lot of), but simply cited it as an oft-heard rationale that can rationalize more than some right-wing users of it seem to appreciate.

In any event, thanks again for trying to get through to me. I fear I shall long be a dense pupil.

All best,

Bob

[Jimbino]

I appreciate your praise, but I have to point out how seriously misguided you seem to be.

There is no question that the gummint stacks the deck against the poor, black, single and foreign person. If you can't see that, you can't see nothin'.

Take Yellowstone, please. You will never see a black, brown, yellow or even red face in the many documentaries including those of the stupid-ass Ken Burns concerning the National Parks (or Forests). You will also never see any of those poor tax-paying souls in your White visit to any national park or forest! (Except for those employed selling trinkets, of course)

Our country is nothing if not racist, sexist, family-fascist, pronatalist and xeno- and generally allo-phobic.

We barely tolerate single mothers, gays, slant-eyes, muslim, disabled or poor folks, and we sure as hell do not want to see any of them in our National Park White country clubs or anywhere near our other gated communities.

It is a canard that the tax code favors home owning over renting. Sure, there is a homeowner's mortgage deduction, but there is a renter's deduction that is even greater, since the owner who rents to the renter deducts not only the mortgage interest, but also all expenses involved in maintaining the property, not to mention accelerated depreciation and other similar fantasies. This tax deduction is passed on to the renter. If you can't see that, you won't have a future in understanding simple economics.

The reality is that young folks are encouraged by our tax code to rent from older folks in higher tax brackets. The older folks, in turn, shelter their higher income from taxes by deductions for renting to younger folks.

Your idea of home ownership as fostering "involvement in the community" is another canard. I don't know what that means exactly, but I do know that Germans have fine communities and that they mostly rent their homes and apartments instead of owning them.

Our tax code is stupid and confused, if anything, but you can say that it embraces a "marriage penalty." Of course, stupid as it is, it embraces marriage benefits as well, some 1000+ of them. Those who benefit from our tax code are those who learn to game the system. The rest of us are the losers. Right now, singles are set up to be the big losers, once gays gain the right to feed at the marriage trough.

[Bob Hockett]

Jimbino's is a nice point. Certainly I feel a bit of discomfort with a liberal state's intentionally stacking the deck in favor of some lifeways over others, at least in the absense of strong evidence in favor of there being a significant broader-public interest in that favoring.

The tax code favors home-owning over home-renting, for example, purportedly on the ground that owning encourages a stakeholder mentality that in turn fosters involvement in the community. Perhaps favoring familihood over single living arrangements can be justified along similar lines, but if so, good empirical evidence would seem to be in order. Moreover, any such evidence seems just as apt to justify support for larger, extended or 'intentional' families as 'nuclear' families.

Incidentally, I'm no expert on the Revenue Code, but what is the 'marriage penalty' that so many on the right seem so often to decry? Does this actually exist, and if so, does it significantly undercut Jimbino's point? Or is it, like so much we hear from the right, simply nonsense?

[Jimbino]

We wouldn't have any controversy over marriage vs civil union if we just prohibited any government benefits or privileges based on marital (or non-marital) status.

Then let all the religious and superstitious run to their priests and gurus for whatever ceremony they want to hold to grant them whatever status that does not involve government recognition.

The added benefit would be that singles would be freed from their tax burden in support of marrieds and things like our "family reunification" policy in immigration would be nullified or rationalized.