Sunday, October 29, 2006

The Shark Jumps In With Vigor

As usual, The Shark has insight and informed opinion on the Homosex "Marriage" Amendment.

One of the arguments against the marriage protection amendment is that the type of judicial activism that redefined marriage in Massachusetts and, for all practical purposes, in Vermont and New Jersey "can't happen" here. At a debate in which I participated on Thursday (the Fourth Street Forum), Sen. Lena Taylor, a bright and pleasant woman, argued - incredibly in my view - that the Wisconsin Supreme Court tends to be conservative.

Justice Diane Sykes has a few things to say about that issue in this link.

Shark discusses Ferdon v. Patient Compensation Fund.

Here's a short constitutional law primer: Guarantees of equal protection in the federal and state constitution cannot be read to forbid all discrimination. The law discriminates all the time, e.g., wealthy people pay higher tax rates than poor people, people under 16 can't get a driver's license, you can't practice law unless you do what is necessary to be admitted to the bar.

Distinctions based on things that we think should never - or almost never - be the basis for treating people differently, e.g., race, will not be allowed unless they are necessary to serve a compelling interest.

Most other distinctions are subjected to a less exacting standard - often called rational basis scrutiny - which requires only that a distinction be rationally related to a legitimate interest.

Ferdon involved the kind of distinction - i.e., that between plaintiffs who could establish damages above the threshold and those who cannot - that normally gets "rational basis" scrutiny and the Court in that case did not disagree. But it announced that it would apply rational basis scrutiny "with teeth" and proceeded to, essentially, substitute its own judgment for that of the legislature as to whether the damages limit was rational.

If the Court continues to apply this new test, there is - in concept if not in practice - virtually nothing that can't be invalidated on equal protection grounds including a limitation of marriage to one man and one woman. The only thing that really restrains the judiciary is a judge's own reticence.

Ahem....Shark proposes a gambler's-delight oxymoron: "reticent judge." Somebody could take THAT line to Vegas and make a small fortune, especially in the case of Screechin'Shirley Abrahamson.

The claim that "it can't happen here" is flat out wrong and, ironically, is now being made by people who want it to happen here and, if the amendment fails, will go to court on November 8 to try and make it happen.

And that prediction, my friends, you CAN take to Vegas.

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