1) I think this ruling is just wrong. The court seemed to rest its decision on the idea that in order to challenge a statute under "rational basis" standards, one is obligated to disprove any possible rational basis for enacting the statute. From the Supreme Court case of Heller v. Doe a challenged statute under the rational basis test "must be upheld against equal protection challenge if there
is any reasonably conceivable state of facts that could provide a rational basis for the classification...It could be that the assumptions underlying these rationales are erroneous, but the very fact that they are arguable is sufficient, on rational-basis review, to immunize the legislative choice from constitutional challenge." The dissent makes a compelling argument that this controversy shouldn't be decided by a rational basis standard. However, even within that framework, I think the law fails. Certainly, one can argue anything, so the courts must make some sort of reasoned judgment about whether the argument is plausible or not. Simply asserted the legislature's professed rationale without any analysis as to its validity or internal consistency is no way to make a decision, even under such a deferential standard. Such a standard would have caused virtually all the cases cited by the court to have been decided in the opposite of their eventual rulings. For example, in City of Cleburne v. Cleburne Living Center (cited by the court), the "rational basis" for the denial of a zoning permit to an assisted living center for the mentally retarded was a) that people generally feared said group and b) a plethora of disingenious statements ranging from "the site is on a flood plain," to "local schoolchildren will harass the residents." For the latter rationale, the court dismissed the analysis on the grounds that the zoning board didn't have any similar requirements for any other type of similarly situated building (a flood plain is a danger to any building, and all sorts of people, from minorities to the elderly to hippies might be mocked by schoolchildren). The court then concluded that in abscence of any other reasonable rationale, the first justification amounted to nothing but an expression of animus on the part of the local community and could not stand. The parrallels to this decision are quite easy to see. The vast majority of the state's claims of rationale falter because it makes no effort to apply the same standards to similarily situated people (for example, its claim that it wants children in houses with a mother and a father is undercut by the fact that it allows single people to adopt). The only analysis it gives that arguably only applies to Homosexual couples is that the state might want its children to be "normalized" and that it would be weird and possibly harmful for predominately heterosexual children to be raised by homosexual parents who are implied to be outside the mainstream. Even beyond the substantial psychological evidence which shows that any harm to children raised by homosexual parents is fictive (which in itself is proven by the situation of the petitioning family), the flaws in this argument are transparant. First, as the dissent aptly notes, it gives no guidance on how to deal with homosexual children who presumably need a "similar" parent figure as much as heterosexual parent does. Second, it doesn't apply the same standard to other groups that could be termed "outside the mainstream" (like inter-racial couples). Ultimately, the statute legally places an actively homosexual person beneath a herion addict in the states perception of how apt they are to raise a child. That is patently absurd and profoundly irrational.
2) The 6th vote to deny rehearing was cast by Justice William Pryor, who was appointed by President Bush in a recess appointment. Had he not been present, the vote would have been 6-5 in favor of a rehearing, and the ruling might have been overturned. So for all those who view the appealate court nomination fights as a waste of time, this should be a wakeup call.
3) Am I the only one who has noticed that in cases such as these, even the conservative judges are loathe to defend the laws themselves, instead resting their arguments on judicial restraint? Justice Birch wrote in the majority opinion for the denial of rehearing:
I will conclude on a purely personal note. If I were a legislator, rather than a judge, I would vote in favor of considering otherwise eligible homosexuals for adoptive parenthood. In reviewing the record in this case one can only be impressed by the courage, tenacity and devotion of Messrs. Lofton and Houghton for the children placed in their care. For these children, these men are the only parents they have ever known. Thus, I consider the policy decision of the Florida legislature to be misguided and trust that over time attitudes will change and it will see the best interest of these children in a different light.
Justice Thomas wrote in his dissent in Lawrence v. Texas
I write separately to note that the law before the Court today 'is ... uncommonly silly.' Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources
This of course quoting Justice Potter Stewart in his dissent in Griswold v. Connecticut where he and Justice Black also talk about the stupidity of a law they believed they were obligated to uphold. Shouldn't conseratives do a bit of soulsearching if their own champions on the court are so vociferous in their denounciations of these laws even as they vote to sustain them?
