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Bench Memos

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What Drives Liberal Judges Crazy?



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That’s easy: same-sex marriage.  As I explain today at Public Discourse, “Same-Sex Marriage Makes Liberal Judges Irrational.”  Here are some excerpts:

One of the most striking features of the campaign for same-sex marriage has been the prominence of its assault on reasoning itself. The logical relations of legal categories with one another, as those categories represent persons, their interactions, and their rights and duties, are at the heart of all legal decision-making and ideally inform legislative and administrative policymaking as well. But the impulse to redefine marriage so that it is no longer understood as the conjugal union of a man and a woman has been consistently heedless of logic and the rational relations of legal categories. . . .

In 2010, federal district judge Vaughn Walker presided over a kangaroo court with a predetermined outcome on the fate of Proposition 8, a California constitutional amendment passed by the people of the state to protect conjugal marriage. Among his many depredations on the integrity of legal reasoning, Walker argued that because marriage has “evolved” in modern times into an institution that treats the sexes more equally, it is not now a “gendered institution” in which the sexual complementarity of the partners can be said to matter any longer. The obviousness of the fallacy was shocking, but the assault on reason was no longer surprising. . . .

. . . [M]aking a complete hash of the logic of Windsor in order to establish same-sex marriage in a state that doesn’t have it[,] Judge Mary Jacobson of the Superior Court in Mercer County ruled on September 27 that the constitution of New Jersey compels the state to permit same-sex couples to marry, thanks to the Windsor precedent. Since Windsor does not compel such a conclusion, and since the state supreme court held seven years ago that the principles of the state constitution were satisfied by civil unions with all the benefits of marital status but without the label “marriage,” the judge had to engage in some legal somersaults.

Judge Jacobson’s creative destruction of logic achieved a non sequitur par excellence. She held that because New Jersey’s same-sex couples in civil unions are treated by the state in every way as married, but, since the state does not call them married, the federal government does not treat them as having that status, therefore the state is violating its own constitution if it does not call them married.

Read the rest here.



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