Washington

Dahlia Lithwick on the Washington State marriage decision (with a couple of swipes at New York on the way):

To do this, the majority first points out that the "court may assume the existence of any conceivable state of facts that could provide a rational basis for the classification"; that "empirical evidence" is not necessary; and that a statute can be rational even if it is over- or underinclusive, and even when it creates some "inequity."

Read: Only if the ban was enacted by insane people can it fail constitutional review.

This is a brilliantly funny article. The sad part is that the humor, black as it is, comes almost entirely from the quotes from the majority opinion. The majority opinion says, basically, that if the legislature did it, one need not look at empirical evidence, one need not consider whether the law actually achieves its ends -- or has any real potential to do so -- and that, unless the entire legislature has been institutionalized, the law is "rational."

Link thanks to Andrew Sullivan.

Here is a link to the opinions.

Here's Dale Carpenter at Volokh, quoted by GayPatriotWest:

Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage.

I confess to a high degree of mystification at this. I haven't had a chance to read the whole opinion yet, but in light of those excerpts I have read, I find his characterization of "careful, closely reasoned, and comprehensive" bizarre.

As for GayPatriot, this sort of sums it up:

All I know is…. I’m just glad Dale Carpenter does the reading and thinking for me.

From what I've seen, Dale Carpenter is not the only one who does his thinking for him.

I don't have time this morning to go into Carpenter's post or the opinion in more detail. (Which I will do, with a link.) Maybe tomorrow. Just on a quick glance, though, I can see some obvious flaws in Carpenter's comments.

A comment on GayPatriotWest's follow-up post: He seems prone to a fundamental misunderstanding of the roles of legislatures and courts in our society, which is, indeed, widespread, thanks to the likes of Donald Wildmon and George W. Bush, but not by that measure valid.. Yes, of course the legislature is the forum most immediately available and most desirable for debating and legislating these questions. However, legislatures, no matter what you might have heard, are not necessarily aware of the constitutional ramifications of their bills, and in some cases, they don't care. (Witness the several attempts by states to circumvent the establishment clause through mandating "moments of silence," the teaching of creationism, and the like.) The courts are our backstop in the realm of civil liberties, and any casual glance at the history of equal rights in this country will show that. To claim otherwise is simply to accede to the extreme right's assault on the courts and the idea of rational basis for law. Granted, "rational basis" is not something that contemporary conservatives seem to be interested in, but that is, after all, the basis of our legal system, and, for that matter, our whole society. (No, the basis of our society is not heterosexual marriage. You didn't really believe that, did you?)