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.