Rational basis for opposing gay marriage

[Volokh, Eugene]

	I appreciate Mark's point, but it just raises the broader issue:  If
laws can be struck down on the grounds that they are supposed by "fairly
weak empirical evidence," a vast range of other laws are going to be
vulnerable, too.  A huge amount of economic regulation, and even of the
criminal law, is based on fairly weak empirical evidence.  On some matters,
such as the indirect effect of laws in constructing social norms and thus
affecting the behavior of future generations, empirical evidence is
virtually impossible.  More broadly, even when we're measuring more direct
effects, the empirical evidence is often weak and hotly contested, since
it's impossible to run controlled experiments, or to control for many of the
key factors in any other way.

	Eugene


Mark Graber writes:

> I do think we have dueling rational basis tests here.  If we 
> apply the Williamson v. Lee Optical rational basis test, I'm 
> inclined to think that the ban on gay marriage flies, largely 
> because I think such laws as "all dogs must wear knit 
> sweaters" also flies.  That's the nature of the rational 
> basis test.  The government always wins.  The real issue is 
> that given what I believe to be the fairly weak empirical 
> evidence (I do not take Eugene to be disagreeing on this 
> score) supporting a number of arguments against gay marriage, 
> how much bite has to be put into the rational basis test for 
> that standard to warrant striking down bans on gay marriage.
> 
> Mark A. Graber
> 
> 
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