taking rational basis to its rational conclusion

A while back I mentioned how the Washington State Supreme Court used "rational basis review" to uphold Washington's law limiting marriage to one man and one woman. Their reasoning: the state has a fundamental interest in procreation. After all, how else is it going to sustain its tax structure? Though I thought the Court's ruling was a bunch of bunk, I was roundly smacked down in the comments by a later anonymous interloper, who wrote,

Well, obviously you and Ms. Fairhurst are feeling rather smug about your superior talents in logic. Can you imagine? That entire legislature, along with five WSSC Justices, are nothing but morons! Irrational. In the words of Samuel Alito, in his criterion for the rational basis test, “stark raving mad.”

Oops… you should know better! “…there is no logical way…?” Big red flag there! Haven’t you ever worked a book of logic puzzles? A sucker bet to be sure.

A bisexual man is in love with another man. They want to settle down, get married. But they can’t get legal recognition for their marriage! Dreams smashed, they drift apart. Before long, the strapping young man meets a woman… love, marriage, sex, baby. The established definition of marriage has created a baby that otherwise wouldn’t have been.

A bittersweet outcome to be sure, but I think it is a decent logical refutation. Remember that the rational basis test does not require the legislators to be smart, it only requires them to have SOME RATIONAL BASIS for their belief that the legislation will advance a [state interest].

So maybe you aren’t such an exceptional logician? Maybe, just possibly, some of the legislators thought of other scenarios? That is why the rational basis claim is very, very rarely successful in overturning legislation. The legislature doesn’t need to have a GOOD plan, or a smart plan, they simply need a plan that is not 100% refutable by pure logic. Once you get past that, it is all a matter of opinion, and justices are forbidden from holding their opinions above those of the legislature.

Can't fight "pure logic." All would appear lost for the opponents of the Defense of Marriage Act.

Enter Gregory Gladow.

Proponents of same-sex marriage have introduced an initiative that would put a whole new twist on traditional unions between men and women: It would require heterosexual couples to have kids within three years or else have their marriages annulled.

Initiative 957 was filed by the Washington Defense of Marriage Alliance, which was formed last summer after the state Supreme Court upheld Washington's ban on same-sex marriage. In that 5-4 ruling, the court found that state lawmakers were justified in passing the 1998 Defense of Marriage Act, which restricts marriage to unions between a man and woman.

Under I-957, marriage would be limited to men and women who are able to have children. Couples would be required to prove they can have children to get a marriage license, and if they did not have children within three years, their marriages would be subject to annulment.

All other marriages would be defined as "unrecognized" and people in them would be ineligible to receive any marriage benefits.

"Absurd? Very," the group says on its Web site, which adds it is planning two more initiatives involving marriage and procreation. "But there is a rational basis for this absurdity. By floating the initiatives, we hope to prompt discussion about the many misguided assumptions" underlying the Supreme Court's ruling....

Cheryl Haskins, executive director of Allies for Marriage & Children, agreed with Gadow's group on at least one point about the initiative: "It's absurd," she said.

Haskins said opponents of same-sex marriage "have never said that the sole purpose of marriage is procreation."

"When we talk about defending the institution of marriage, we're talking about the union of a man and a woman," she said. "Some of those unions produce children and some of them don't."

With I-957, "you're dictating people's choices in a way that is utterly ridiculous," she said.

However, Gadow noted that the Supreme Court's majority decision specifically mentioned procreation throughout.

The opinion written by Justice Barbara Madsen concluded that "limiting marriage to opposite-sex couples furthers the state's interests in procreation and encouraging families with a mother and father and children biologically related to both."

To their credit, two of the staunchest supporters of gay rights in the Washington state legislature aren't backing the initiative, taking the polite and political way out and deferring to the rule of the legislature. But you've got to hand it to Gadow and crew for their Swiftian deconstruction of rational basis review.

All right, straight folks. Get procreatin'.


Update: As Ed finds, some people just don't appreciate irony.