The Court of Appeals for the First District in California has upheld California’s same-sex marriage ban. The 2-1 majority opinion cited the need for the legislature to make such sweeping changes and said that, so long as the ban passed the rational basis test, the court could not substitute its judgment for that of the legislature. Straight-up originalism.
An attorney for the opposing counsel stated that, “It is incorrect and unfair to say that the courts don’t have the responsibility to decide whether excluding a group of people from marriage is constitutional.” Well, thing is, the Court did decide if that was constitutional and its opinion reflected that judgment. It simply did not say whether it was equitable, best for society, or prudent, as those are issues for the Legislature – ones that a 3-person court is ill-equipped with which to deal. If Ms. Minter were to argue that California’s rationale does not pass rational basis or that the court, in its rational basis analysis, should examine the motive behind the rationale (i.e. justification in hindsight v. original purpose of the law), then that is a different story. As is, though, the court did its job… and even proponents of gay marriage recognize that Equal Protection clauses are not designed to give broad, sweeping protections to groups that may face discrimination.
So, legislate it or re-write Equal Protection to require a higher level of scrutiny for discrimination. Until then, go to Massachusetts if you want to marry (or sit next to him on a non-Virgin Atlantic flight.)