The debate over the Prop 8 ruling is fairly tedious on various grounds. One argument repeatedly made is that marriage is a state issue, so the federal courts should leave it alone. This runs into Loving v. Virginia:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
Here gender/sex is the illegitimate classification. Another argument is that there is a "rational basis" for Prop 8. The ruling in fact argued that strict scrutiny applies, but that even rational basis is not met. This review in the eyes of some is easy to meet. For instance, allow same sex marriage and state recognition of polygamy might be threatened. Mind you, as the person arguing Loving for the state of Virginia noted in respect to threat to family harmony admitted, the argument is weak. Citing it doesn't me "I" believe it to be true. It just is credible enough to meet the test.
IOW, the review doesn't really require rationality. Any honest analysis would suggest that polygamy is not threatened when same sex marriage is allowed, particularly when same sex domestic partnership with most of the rights of marriage is already in place. Particularly if the state, by state constitutional compulsion, gives strict scrutiny to same sex classifications in every other respect. Anyway, wouldn't allowing same sex sodomy also rationally be believed to cause this? The usual parade of horribles were made there, such as "polygamy, homosexual, same-sex marriage, consensual incest, prostitution, fornication, adultery, and possibly even personal possession in private of illegal drugs."
This only means "rational basis" is being selectively used, some say. When fundamental rights are at stake and/or "irrational prejudice" is apparent, maybe this is fine, even if the Supreme Court isn't totally honest about it. Same sex relationships is one area where this has been done -- Lawrence v. Texas didn't bend over backwards to find some "rational" basis for what was clearly based on selective personal morality and/or prejudice. Ditto when rational basis was deemed not present because of the mess of exceptions and lousy fit that a health rationale for a law against premarital distribution of contraceptives was something that one "cannot believe." The law was if anything more credible on that basis than California's law against same sex marriage.
In other cases, "every conceivable basis" is enough. But, the basis has to have some shred of rationality:
True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.
Such "realities" is what the fact-finding and conclusions made by Judge Walker includes. We can call this "rational review with teeth" or whatever, but it shouldn't just be about making shit up. Yes, "rational basis" need not be conclusive or narrowly tailored. It can be under or overbroad in various respects. But, it has to have some degree of credibility, "some footing" outside of make believe. Perhaps, it also is a matter of expecting a little more (see the Massachusetts state ruling that also rested on rational basis -- "real and substantial relation" and "logically believe"*) of rationality. And, as with gender discrimination, rational basis is not even enough here.
But, if it was, a fair analysis of the term would suggest it was not met.
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* The ruling cites Justice Stevens, who put forth a good guiding principle:
The term "rational," of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. [n4] Thus, the word "rational" -- for me at least -- includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially.
As noted by Romer, a badly fit policy "imposing a broad and undifferentiated disability on a single named group" is suspect here. The domestic partnership scheme does make this not as blatant, but marriage still provides a collection of rights, broadly denied here to same sex couples, even those who in every relevant way are the same as those who have marriage rights. Necessary neutrality is lacking there.
And, as Stevens notes, history of discrimination and so forth helps us to determine this fact. Doctrinal neatness might allow us to draw some lines, but the truth of the paths of Marshall and Stevens in the cited ruling also is convincing.