Three Quick Points About the California Ruling
One: it’s grounded entirely in the California Constitution. I know nothing about the California Constitution. I doubt anyone else does. That makes it very difficult to debate the legal reasoning.
Two: California struck down the ban on same-sex-marriage under “strict scrutiny” which is basically impossible to pass, so this comment is somewhat moot. But it is often argued that a distinction between “marriage” and “civil unions” in language (and hence in law) cannot be justified apart from pure animus – and, hence, would fail a rational basis test. This is only true if there is no rational reason to have a distinction in language between a union rooted in male-female complementarity and a union not so rooted. It may or may not be the case that there is no good reason, apart from animus, to discriminate between married couples and same-sex unions in any aspect of law. But as a matter of language, it’s very hard for me to see how there is no rational basis for making the distinction. (That doesn’t mean, by the way, that there isn’t an argument for erasing the distinction in language, or in law, merely that the assumption that the distinction can only be rooted in animus is not warranted.)
Three: Jeffrey Rosen decries the breadth of the decision because of its likely political consequences. I can accept (though I don’t think I agree with) a populist argument that the courts should be sensitive to public opinon to the degree that they should not make rulings – particularly rulings that break legal ground – likely to be overruled by the public. But it is a very different matter to say that the courts should be sensitive to the political impact of their rulings more generally. The Massachusetts Supreme Court got the politics right: their ruling was not overturned by the people. But from Rosen’s perspective, they got the politics wrong, because their ruling sparked other states’ citizenries to pass amendments to their state constitutions banning same-sex marriage. I should hope that we can all agree that courts absolutely should not make their decisions on such a basis, to say nothing of worrying about the likely impact on the political fortunes of Democrats or Republicans in the next election.
No, we cannot agree that judges should not care about their reputation amongst the community of judges, or being within the mainstream of political arguments accepted by the two dominant political parties. The two dominant political parties encompass most reasonable opinion in the polity, numerous demographic factions, and multiple political philsophies. And it certainly makes sense that Margaret Marshall should have considered how her opinion would impact the national election and written a more modest opinion that accomplished the same results without inflaming the public at large.
— Jack · May 17, 12:36 AM · #
“The Massachusetts Supreme Court got the politics right: their ruling was not overturned by the people.”
Did the people get a chance to overturn the ruling? Only if one equates the state legislature with the people.
— pb · May 18, 04:30 AM · #
It’s hard to debate you when you won’t take the risk of actually making assertions, but I’ll give it a shot anyway:
The idea that this is merely a rational distinction as a matter of language rather falls apart when you consider other, similar distinctions we don’t make. For instance, insofar as a marriage between a man and a man is different from a man and a woman, a marriage between a white man and a black woman is also different from a marriage between a white man and a white woman. For that matter, white/white marriages are different from black/black marriages. We could communicate more specifically if we had different words for each!
And yet, for <i>some reason</i>, we don’t do that.
Second, I’ll go ahead and make an argument for erasing the distinction, since you so kindly allow that this is possible:
The only reason there is any distinction now, the only reason this is even possible, is that the heterosexual majority exercises oppressive power over the LGBT minority. The distinction is a way of reminding people of that power relation, and a way of perpetuating it. It is, in short, quite strictly a way of pissing on gays.
So we should cut it out.
— Mike Meginnis · May 18, 04:59 AM · #