I haven’t commented on the disappointing ruling from New York’s Court of Appeals last week, that denying same-sex marriage is rational, mostly because I have little to add to what others have already written. In case you missed it, the Court found that it is rational to induce straight people to marry because they’re irresponsible and might accidentally have children, while gay people only have children when they want to, so an extra state inducement to marriage is not needed. Kip, among others, gives a pretty good fisking of the decision. This will surely end up on the dungheap of judicial travesties, alongside Plessy v. Ferguson and its ilk. Except that it will probably become moot before it gets overruled. I also agree with Andrew that the proper response in New York is to shrug and start working on the legislative solution.
I thought the most intriguing analysis was from Jason Kuznicki, who explains why he thinks the Court got the rational basis test per se wrong. He caveats his analysis with the standard disclaimer that he’s not a lawyer, but in my opinion (not that I’m a lawyer either), Jason sure knows his constitutional law. He begins with the standard definition of the "rational basis test": that the Court must decide whether what the Legislature enacted is a rational means for achieving a legitimate government end. He then observes that the NY Court’s opinion analyzes whether the end was rational, not whether it was legitimate. And as a good libertarian, Jason is always quick to question whether a government end is legitimate. He makes a convincing case that the Court bungled the rational basis test in their analysis. Thus, it was NY’s Supreme Court that got the issue right. (Alas, in New York’s upside-down court nomenclature, the Supreme Court is not the supreme court.)