Prop 8, The Dissent

Liz Newcomb has a very good summary of Judge Smith's dissent in the Prop 8 appeal, which is pretty weak.

Smith's dissent was weak. In it, he gave some credence to two of the anti-marriage equality side's bases for upholding Prop 8: (1) the "optimal parenting" basis, whereby the proponents of prop 8 argued that opposite sex parenting was optimal and the state has a rational basis for encouraging that through marriage; and‎(2) the "accidental parenting" theory, whereby opp sex couples can conceive accidentally, and same-sex couples can't, so it's supposedly rational to encourage accidental parenting within the bonds of marriage, and there's no need to offer marriage to same-sex couples.

Now, I will have to check whether rationale number (1) was factually refuted at the trial, but I think it was. In any case, I know of no legitimate study that shows opposite sex parents are better parents than same-sex. But Smith's dissent ignored the factual situation and seemed to say it's enough if the government thinks its justification is rational. That's a head-scratcher for me. Moreover, the state does not prevent other couples who cannot conceive from marrying.

Rationale number (2) also seems like a very limited and tenuous basis upon which the state supposedly provides marriage rights. Again, the government does not restrict couples who cannot conceive from marrying. So this rationale would seem extremely overbroad on its face. Smith ignored that.

What's even more telling here, I think, is that Prop 8 does not address either of those "rationales" -- denying same-sex couples the right to marriage does nothing to strengthen parenting within opposite-sex marriages, placing Smith's dissent firmly in the realm of ideology, not law.

I'm betting that the proponents will ask for a en banc retrial, in an attempt to draw the whole thing out for as long as possible -- that's been their strategy all along. I guess they think we'll get tired and go home or something.

Not.

Read Newcomb's piece and the comments. Good discussion.

PSD -- here's a thorough summary of the whole thing from Timothy Kincaid at BTB. As if you needed another one, but it's concise and clear.