So I just finished reading through the 4th district opinion 141167.P Timothy Bostic v. George Schaefer, and here’s what I’ve taken from it.
- As with Perry vs Brown, the proposed reasons for government intervention in marriage based on gender was taken apart comprehensibly.
- As with Perry vs Brown, the arguments related with marriage’s most important primary purpose being “for the children” were all but openly ridiculed.
- Considering the punt the Supreme court took previously, standing was examined to ensure an air-tight procedural basis.
- The dissent is incredibly flawed, and attempts to require a much lower standard of scrutiny for a discriminatory law, by declaring same-sex marriage to be entirely novel and unrelated to marriage. Justice Niemayer then declares that instead it is the “creation” of such a right that must be scrutinised. However, he provides no supporting evidence beyond his declaration of it to be so, only referring to cites that are not directly related to that question. And even recognises that other jurisdictions have identified marriage as a right that encompasses same sex marriage, and could be cited as such, but still claims that is not a reasonable conclusion. Since reduced scrutiny is the only plank of his dissent, removing it makes the entire rest of his arguments fall apart.
- The majority found that the appropriate examination could only be Strict Scrutiny, a departure from Perry vs Brown and a much much more demanding basis. There are no valid court cases of precedent and standing where a law was questioned on basis of strict scrutiny and found to survive it. (Korematsu v. United States, the 1944 case that defended Internment of Japanese was later found to have been an unsound finding as the Government had withheld evidence from the courts that made it clear that Internment was not made on any rational basis. As such it is not directly overturned, but it does not provide precedent and could probably be directly challenged.)