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Judge Randy Smith, who was appointed by President George W. Bush, dissented, saying he disagreed that Proposition 8 served no purpose other than to treat gays and lesbians as second-class citizens.

http://www.deseretnews.com/article/7000 ... ching.html

http://cafaithforequality.org/2010/11/i ... -a-mormon/

http://mormonsformarriage.com/?p=403

Here is what I posted about Judge Smith's dissent on a friend's Facebook page:

First, regarding Judge Smith: I do not know him personally, nor have I read any of his other opinions. I found the attacks on Judge Walker from the Right to be both tasteless and baseless. I feel the same about any attacks on the character or integrity of Judge Smith. I have now read his dissenting opinion and, while I disagree with him and agree with the majority, his dissent is a solid piece of legal analysis and writing. He and the majority are in agreement that the proper standard is rational basis, rather than heightened or intermediate scrutiny. It is generally very difficult to have legislation ruled unconstitutional as violating the 14th Amendment on a rational basis review. As Judge Smith rightly points out multiple times in his dissent, "rational-basis scrutiny . . . is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause." He is right that the question the Court needed to answer was "whether Proposition 8 rationally relates to any independent legitimate government interest." The majority examined that question and concluded that the answer was No. Judge Smith examined it and concluded the answer was Yes. Judge Smith cited two bases he found rational that serve a legitimate government interest: (1) "responsible procreation" and (2) "optimal parenting." I think the majority does a fine job articulating why Judge Smith is mistaken on these two points, but Judge Smith gives it a good go at arguing why, even though both rationales are "debatable" and may be based only on "rational speculation" such that they might only "conceivably be a legitimate governmental interest," that is sufficient to survive a rational basis review.

Interestingly, Judge Smith does not address any of the other rationales put forward by Prop 8 proponents and amici, including the rationale that Prop 8 was protecting religious freedom. He apparently did not think that argument even worthy of comment. Nor did he address the argument that "proceeding with caution before making significant changes to marriage" is a basis for enacting a discriminatory law.

The question of whether this particular Proposition survives a rational basis review is a close one. I think the case against it is very strong if intermediate or heightened scrutiny applied. And, as I said, I think the majority got it right here. Even under rational basis, there just is no other reason for this Proposition than animus toward gays and lesbians. The laws of California already provide many of the legal incidents of marriage to committed gay relationships. And the state had already been marrying same-sex couples. There just was no other reason for it than pure prejudice, and the proponents are unable to articulate anything but the flimsiest and most speculative rationales for it that really serve no legitimate governmental purpose. I think Judge Smith's opinion is weakest where he tries to distinguish the Romer case that the majority opinion discusses at length. The differences Judge Smith identifies are superficial and immaterial; the similarities the majority identifies are solid. Reasonable minds may differ, of course, without need for any impugning of character or calling into question motives.

I am impressed with the quality of both the majority and dissenting opinions. But I'm glad the majority view carried the day on this one!

Good Judges Recuse Themselves to you know "avoid the very appearance of evil or wrongdoing"

Equality wrote:The question of whether this particular Proposition survives a rational basis review is a close one.
I am impressed with the quality of both the majority and dissenting opinions. But I'm glad the majority view carried the day on this one!

Nope. Its not close. If you think the majority got it right, then by definition, you have to conclude the that "rationale" adopted by Smith was contrived.

There is no grey area. If you think its a close call, then Smith was right.

I read Smith's ruling. The purported rational connection between banning gay marriage and promoting responsible procreation by heterosexual couples was completely contrived, having no basis in reality or rational thought.

Jaybear wrote:

Equality wrote:The question of whether this particular Proposition survives a rational basis review is a close one.
I am impressed with the quality of both the majority and dissenting opinions. But I'm glad the majority view carried the day on this one!

Nope. Its not close. If you think the majority got it right, then by definition, you have to conclude the that "rationale" adopted by Smith was contrived.

There is no grey area. If you think its a close call, then Smith was right.

I read Smith's ruling. The purported rational connection between banning gay marriage and promoting responsible procreation by heterosexual couples was completely contrived, having no basis in reality or rational thought.

I agree with this. The question is whether a mere speculative basis with a tenuous connection to a debatable legitimate governmental interest is sufficient to survive a rational-basis review. That's what I am arguing is a close call. A review of Supreme Court jurisprudence applying rational-basis level of scrutiny reveals that Judge Smith is not completely off-base to suggest that under rational-basis review, Prop 8 should survive. I think the majority's argument is more persuasive that this case, like Romer, is one that does not survive even the relatively easy burden imposed by rational-basis review. I agree that the rationales Judge Smith cites are very weak. The question that is close is whether even such very weak (or, if you prefer, contrived) rationales are enough to satisfy the rational-basis standard. Judge Smith thinks they are; I think they are not. But it's not outrageous or outlandish for a judge or legal scholar to disagree with me on that. All I'm saying here is that I think it unfair to malign Judge Smith or impugn his character merely because one disagrees with the conclusion he reaches in his dissenting opinion. His argument is legitimate, in a legal sense, even if I find it unpersuasive.

What I like about judge smith opinion is that right out of the gate he strikes down the proponents of prop 8 via their ill concieved Baker argument.

The knuckle heads could not and still do not see the apples and oranges of a never having a right ( baker) and having a right taken away.

Also, I think that Supreme Court will be forced to develope a new test, I do not recall Supreme Court applying equal protection to a situation where rights were taken away, all the equal protection cases I know of involve different classes having different rights.

Judge Randy Smith, who was appointed by President George W. Bush, dissented, saying he disagreed that Proposition 8 served no purpose other than to treat gays and lesbians as second-class citizens.

Unusual reasoning must be a subject taught at the J. Reuben Clark College of Law.

Judge Randy Smith, who was appointed by President George W. Bush, dissented, saying he disagreed that Proposition 8 served no purpose other than to treat gays and lesbians as second-class citizens.

Unusual reasoning must be a subject taught at the J. Reuben Clark College of Law.

There is no evidence that Prop 8 treats gays and lesbians as second class citizens. It doesn't prohibit gay marriage and merely recognizes the importance the state should place on male and female role models in society.

bcspace wrote:
There is no evidence that Prop 8 treats gays and lesbians as second class citizens. It doesn't prohibit gay marriage and merely recognizes the importance the state should place on male and female role models in society.

Gender-based discrimination is unconstitutional, bcspace.