Rep. Trey Gowdy (R-SC) compared same-sex marriage to incest and polygamy during a House Judiciary Committee hearing with Attorney General Eric Holder this afternoon, asking why the administration would be willing to apply a higher level of scrutiny to laws that prohibit gay people from marrying as a pose to other kind of marriage arrangements:
GOWDY: And would you agree with me that the rational basis test is the appropriate test to be used with respect to consanguinity, the marrying of family members? That’s the appropriate test, right? Rational basis. You’re not arguing for a heightened level of scrutiny on whether or not cousins can marry each other.
HOLDER: No, I would not argue that. I don’t know if there’s law on that, but again off the top of my head, I’m not sure that you would need heightened scrutiny standard in that regard. [...]
GOWDY: Alright, and we don’t need intermediate or heightened scrutiny with respect to polygamy, right?
HOLDER: Yea, I would think not.
Unlike laws preventing people from marrying their brother, laws which discriminate against gay people meet the Supreme Court’s legal standard for heightened scrutiny because gay men and lesbians have historically been “subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”
Gowdy went on to note that two court of appeals have ruled that a rational basis test should be applied to sexual orientation laws, while just one agreed with the administration’s view that a higher level of review is applicable and asked why Obama chose to side with the one decision. “Court of appeals make decisions that sometimes the Department of Justice will disagree with to the extent that court of appeals have taken different views of what the appropriate level of scrutiny is,” Holder said. “We think those courts of appeals are wrong. The Supreme Court will ultimately have to decide I guess this issue.”
Gowdy then admitted, “The Ninth Court of Appeals is presumptively wrong. So we don’t change our course of conduct when the ninth circuit court of appeals comes up with something crazy, we don’t change our course of action.”