Tort Bunnies: Quackophobia

December 06, 2010. I'd do one about finals, but outside law school, the world goes on. Stressed out 1Ls can peruse comics from finals past of course. Anyhow, the 9th Circuit will be hearing oral arguments today in Perry v. Schwarzenegger, the federal case regarding the constitutionality of California's Prop 8 banning gay marriage. You should be able to listen in via C-Span. There'll be two issues in this case: (1) whether the anti-gay marriage initiative is constitutional, and (2) whether opponents of Prop 8 have standing to appeal in the first place (despite being a named defendant, Schwarzenegger actually agrees with the opponents of Prop 8 and decided not to appeal).

A few words about constitutionality: In order for a law to be valid under the 14th Amendment (equal protection), it must, at the very least, have a rational basis for any discrimination. Generally, the test is whether there's any rational basis out there, not whether the actual basis relied upon was rational. Perry is not the first case to address whether there's a rational basis in not letting gay people marry. New York addressed this issue in Hernandez v. Robles, 7 N.Y.3d 338 (2006), albeit only with regards to the New York Constitution, not the federal one. One of its reasons essentially amounts to Tort Bunny's reasoning: The legislature could rationally have concluded that heterosexuals might inadvertently create kids and we should encourage their parents to stay together. That's not true for homosexual couples.

In addition, see Justice Scalia's dissent in Romer v. Evans, 517 U.S. 620 (1996), which basically amounts to: "Why isn't moral disapproval of gay people a sufficiently rational basis for disallowing gay marriage?"

Also, Cadbury bunny notwithstanding, rabbits don't lay eggs. Seriously people.