Acton Institute Powerblog

The Reversal of Proposition 8: A Dangerous Precedent

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The Ninth Circuit Court of Appeals has acted to reverse the democratic decision of the people of California to confine marriage to its traditional parameters of a man and a woman. In making this decision, the court decided that it could overturn the will of the people of California on the basis of what is known in legal circles as “the rational basis standard.”

When evaluating the violation of fundamental rights, the court has often used a standard of “strict scrutiny” in cases involving racial or religious discrimination. By that standard, the petitioner frequently wins. In cases of gender discrimination, the court has relied on a kind of intermediate scrutiny.

The rational basis standard is a different bird. We were taught (as have been law students for a long time) that under the rational basis standard, the government would almost always win because the burden of establishing irrationality is so high. My liberal New York Jewish law professor taught us that the court would only find a state action irrational if it did something like declare that everyone must wear one green shoe on Tuesday.

The Ninth Circuit has now effectively said that to believe marriage is a matter for a man and a woman is to be so irrational as to declare that everyone must wear one green shoe on Tuesday.

Now, I understand that many readers may favor expanding marriage to include same sex unions. And there are reasons to support that move. But the case is not so overwhelmingly strong as to render the opposite conclusion nonsensical.

This is an important case. If a handful of individuals can declare a particular point of view completely irrational (a democratically expressed view), then we are not a republic. We are an oligarchy.

Hunter Baker Hunter Baker, J.D., Ph.D. serves as contributing editor to The City and to Salvo Magazine. In addition, he has written for The American Spectator, American Outlook, National Review Online, Christianity Today, Human Events.com, the Atlanta Journal-Constitution, and a number of other outlets. His scholarly work has appeared in the Journal of Law and Religion (“Competing Orthodoxies in the Public Square: Postmodernism’s Effect on Church-State Separation”), the Regent University Law Review (“Storming the Gates of a Massive Cultural Investment: Reconsidering Roe in Light of its Flawed Foundation and Undesirable Consequences”), and the Journal of Church and State. In 2007, he contributed a chapter “The Struggle for Baylor’s Soul” to the edited collection The Baylor Project, published by St. Augustine’s Press. He has also been a guest on a variety of television and radio programs, including Prime Time America and Kresta in the Afternoon. As a law student in the late 1990s, Hunter Baker worked for The Rutherford Institute and Prison Fellowship Ministries where he focused primarily on defending the constitutional principle of religious liberty. Prior to beginning doctoral studies in religion and politics at Baylor University in 2003, he served as director of public policy for the Georgia Family Council. While at Baylor, Baker served as a graduate assistant to the philosopher Francis Beckwith and the historian Barry Hankins. He assisted Beckwith in the editing of his landmark book Defending Life which has now been published by Cambridge University Press. He also provided research assistance to Hankins in his forthcoming biography of Francis Schaeffer. Baker currently serves on the political science faculty at Union University and is an associate dean in the college of arts and sciences. He is married to Ruth Elaine Baker, M.D. They have a son, Andrew, and a daughter, Grace.

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  • Eli Horowitz

    “If a handful of individuals can declare a particular point of view completely irrational (a democratically expressed view), then we are not a republic. We are an oligarchy.”

    Oh – so we really owe an apology to all those southern states, don’t we? I mean, who are we to “declare a particular [democratically expressed] point of view completely irrational”? They democratically expressed their view that people of different races should not be allowed to marry, and, by golly, I guess that’s good enough for the Acton Institute.