Most laws aren't based on provable "scientific fact," and the rational basis test generally doesn't require scientific proof. That's especially so in areas that can't be easily subjected to scientific experiment, and in which indirect consequences might not be felt for generations. One might conclude that a law is unwise or unfair, based on one's own educated guesses about what the likely costs and benefits will be, without concluding that it is irrational.
Indeed, I myself have been persuaded to the view that the opposite-sex-only marriage rules are unwise, though I don't think they are irrational either in the constitutional sense or in the lay sense of having no plausible rational justification. One such rational justification is that one ought not modify - or modify further - rules for an institution that is very old and foundational in society, as well as important to our legal system, until one sees more than a few years' experience with such an institution. Again, one might disagree with this justification (I do, on balance), but I find it hard to see how it's irrational. Another justification is the view that opposite-sex relationships are better for society (for instance, because they produce more children, or because they provide children with both male and female parents) than same-sex relationships, and that the fact that many non-entirely-heterosexual people are bisexual rather than purely homosexual- especially among women - suggests that there are at least some people who could be influenced to choose heterosexual relationships over homosexual relationships. (See Laumann et al. (1994), reported in relevant part at http://www.volokh.com/posts/1184344872.shtml, for data on the relative number of bisexuals vs. pure homosexuals.) One might disagree that we want more children, or that in the long term opposite-sex relationships will produce more children (given reproductive technology), or that having a male and female parent is indeed markedly beneficial for children, or that any significant number of bisexuals will indeed be swayed towards heterosexuality by the marriage rules; or one may conclude (again, as do I) that the benefits of same-sex marriage (e.g., reduction in sexually transmitted diseases, more stability for the many children who will in any event be raised by same-sex couples, etc.) outweigh the possible costs. But again I don't see how the justification I outline above is irrational, as opposed to not sufficient to carry the day. Finally, one can of course conclude that as a matter of moral obligation, same-sex relationships should be treated equally with opposite-sex relationships even if there are social costs to this - or that there should be a presumption of equal treatment that can only be rebutted if we are really quite confident that the equal treatment would generate social costs. But that's not an argument about scientific fact or rationality. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 9:00 PM To: Law & Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, "Esenberg, Richard" <richard.esenb...@marquette.edu<mailto:richard.esenb...@marquette.edu>> wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful.
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