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Bench Memos

NRO’s home for judicial news and analysis.

A Judge Who Gets It



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Justice Peter Zarella has the goods on what is really at stake in the Kerrigan case, and writes the best of the three dissents.  The law on its surface, as I suggested below, takes no notice of sexual orientation.  But of course the institution of marriage goes deeper than legal surfaces, and therefore the law is properly understood as a response to purposes deeper than itself.  As Zarella writes:

[B]ecause the long-standing, fundamental purpose of our marriage laws is to privilege and regulate procreative conduct, those laws do not classify on the basis of sexual orientation and . . . persons who wish to enter into a same sex marriage are not similarly situated to persons who wish to enter into a traditional marriage. The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry. If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court.

 



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