rational basis review: the key to the Washington State DOMA decision

From the decision [pdf]:

DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature’s decision that only opposite-sex couples are entitled to civil marriage in this state.

Let's assume for the moment that the court is correct on its grounds for relying on the rational basis standard. The decision continues:

Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes. Accordingly, there is no violation of the privileges and immunities clause.

As the decision explains later,

Moreover, the correct inquiry under rational basis review is whether allowing opposite-sex couples to marry furthers legitimate governmental interests.... Granting the right to marry to opposite-sex couples clearly furthers the governmental interests advanced by the State.

Notice the missing word: "only." Clearly, allowing heterosexual couples to marry advances state interests. But consider an analogy: a "Defense of Voting Act." The State decides to ban gays from voting, claiming that "allowing heterosexuals to vote furthers legitimate governmental interests." Certainly true--but would it then follow that disallowing homosexuals from voting would also further the State's interests? No. The chain of reasoning is a non sequitur.

Nonetheless, in its deference to the Legislature, the Court claims to sit under a massive burden of proof. To defeat the rational basis, the Court would have to show that there is no "conceivable set of facts" to support a legislative decision, even if it is contradicted by empirical evidence presented at the time the bill passes. The Court, by its own reasoning, is not allowed to review the evidence or testimony presented.

According to the Court, the mere existence of an argument--no matter how flawed, fallacious, or unsupported--that gay marriage somehow dilutes heterosexual marriage is enough to say "hands off."

Fairhurst, in her dissent, repudiates this gutless view of rational basis testing [pdf].

Despite the deference afforded to the legislature, the rational basis standard is not without teeth--“the court’s role is to assure that even under this deferential standard of review the challenged legislation is constitutional.” [DeYoung, 136] Moreover, this court tends to afford more deference to the legislature when considering economic statutes than it does when considering regulations curtailing personal civil liberties....

Thus armed, Fairhurst continues, echoing my logical critique:

First, the plurality identifies encouraging procreation as a legitimate state interest.... But there is no logical way that denying the right to marry to same-sex couples will encourage heterosexual couples to procreate with greater frequency. Second, the plurality points to encouraging marriage for relationships that result in children as a valid state interest.... But denying same-sex couples the right to marry also will not encourage couples who have children to marry or to stay married for the benefit of their children. Finally, the plurality declares that DOMA may be rationally related to the State’s interest in encouraging the raising of children in homes headed by opposite-sex couples.... Even if such a goal is valid, which seems unlikely, denying same-sex couples the right to marry has no hope of increasing such child rearing. The denial of the right to marry to an entire class of persons is completely unrelated to the proffered state interests. Thus, DOMA is not merely underinclusive and/or overinclusive, it is wholly irrational.