Thursday, June 26, 2003
Da Supremes: One of the most technically interesting points that will come from today's decision on the sodomy issue, is the standard the Court chooses to use in reviewing the law. The Court can use "rational basis", "strict scrutiny" (for a "suspect" classification) or "the one in the middle that doesn't have a cute name". The concept is that if there is any "rational basis" for a given law, then you'd be hard pressed to invalidate it. Conversely, where a law discriminates against a "discrete and insular minority," then the law has to be "narrowly tailored" to fit a particular "compelling government interest." Well, you can see that these "tests" put the rabbit in the hat. If you label the group affected as only deserving "rational basis" review, then the outcome is pretty much a given. So, the question is whether homosexuals are a "discrete and insular minority." There is no way on this Earth that this Court will, as a majority, put that label on gays (you could hear Santorum scream from where you are if that happens). More likely, however, is that they apply rational basis and then say that it's simply not "rational" anymore to stop consenting adults from engaging in sex (however you define it) in their homes. This is the most Solomonic way of making everyone happy and unhappy at the same time. I like a 6-3 (I forget what I predicted before). Scalia, Rhenny and Clarence go against, but I wouldn't fall over dead if Rhenny, in a last gasp attempt to rehab his image, throws the gays a bone (pun intended).