ln equal protection analysis, rational basis review "is not a license for courts to judge the Wisdom, fairness, or logic oflegislative choices." Heller, 509 U.S. at 319 (internal quotation marks omitted). . . Additionally, the government "has no obligation to provide evidence to sustain the rationality of a statutory classification." Id. The measure at issue "is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Id. (internal quotation marks omitted). "[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis Which might support it Id. (internal ll
Regarding CA law respecting child rearing and the optimal parenting rationaleThe above differences between Amendment 2 and Proposition 8 indicate that Romer does not directly control here. ln Romer, the Supreme Court found that animus alone was the purpose behind Amendment 2. Here, the majority backs into its inference of animus, first determining that all other bases for Proposition 8 are constitutionally invalid. Assuming animus or moral disapproval were one of the purposes of Proposition 8, the measure would still survive rational basis review if there were also a valid rational basis behind Proposition 8. Only if there were no other basis would Proposition 8 fail rational basis review. Thus, our task is to determine whether Proposition 8 rationally relates to any independent legitimate governmental interest.
Regarding the appropriate level of scrutinyThe parties argue about whether this analysis subjects Proposition 8 to heightened scrutiny rather than rational basis review. ln my view, while Plaintiffs may give a correct accounting of California law, it does not necessarily follow that the optimal parenting rationale is an illegitimate governmental interest, because it contradicts existing laws on parenting and the family. For example, a posited reason offered by one lawmaking body after being rejected by another lawmaking body can "provide a conceivable basis" for a measure. FCC v. Beach Comm 'ns, Inc., 508 U.S. 307, 3l8 (1993). ln Beach Communications, the Supreme Court accepted a posited reason for a federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory scheme.5 Ia'. Thus, even if California's legislature previously rejected the optimal parenting rationale in its parenting laws (and Proposition 8 is inconsistent with its statutory scheme), that does not prevent the people of California from adopting Proposition 8 under that rationale.
Then this in closingln Lawrence v. Texas, 539 U.S. 558, Justice O'Connor relied on the Fourteenth Amendment's Equal Protection Clause to invalidate a state law criminalizing homosexual sodomy. ln her concurring opinion, she stated: That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
Applying rational basis review in these circumstances also requires such restraint. As the Eighth Circuit said, in Citizens for Equal Protection, 455 F.3d at 870: "ln the nearly one hundred and fifty years since the FourteenthAmendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. lndeed, in Baker v. Nelson when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." There is good reason for this restraint