Irrational “Rational Basis” Review

Just a few quick words on yesterday’s federal district court decision holding that Oklahoma’s definition of marriage in its state constitution violates the federal Constitution.

Federal district judge Terence C. Kern purports to apply rational-basis review (see slip op. at 51)—as Tenth Circuit precedent requires—but his actual analysis bears no conceivable relationship to that highly deferential standard. (I discuss here a ruling by one of the few judges who has properly applied rational-basis review to marriage laws.)

Kern displays his cheerleading earlier in his opinion when, in the course of ruling that a request by two of the plaintiffs (the “Barton couple”) for prospective relief against section 3 of DOMA is moot, he somehow sees fit to pronounce:

Although other plaintiffs received the penultimate [sic] judgment finding DOMA’s definition of marriage unconstitutional, the Barton couple and their counsel are commended for their foresight, courage, and perseverance. [Slip op. at 26 (emphasis added).]

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