Bench Memos

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The Price of Being Nice


Maggie Gallagher had it right in The Corner regarding today’s same-sex marriage ruling in Connecticut when she said, “The civil unions law there not only failed to protect marriage, it was used by gay marriage advocates to argue that marriage laws are unconstitutional.”

Robert Nagel spotted the perverse logic at work in this when the California high court pulled the same stunt in June.  He writes in the Weekly Standard: “it is because homosexuals have achieved so much acceptance in American society, especially in California, that withholding the word ‘marriage’ can seem to some a serious injustice. Perversely, as substantive discrimination diminishes, there is always more to be outraged about.”  And all it took in each state was four judges working up a good froth of outrage, a perfect foam of self-righteous indignation.  Remove that from the opinions and try to spot the legal reasoning.

At this point two questions occur to me.  First, why is it exactly that a law stating that only men and women may marry one another “impermissibly discriminates against gay persons on the basis of their sexual orientation,” as the Connecticut court put it?  The law takes no notice whatever of sexual orientation, after all, and marriages between men and women not sexually inclined to one another have been known to happen.  Now that same-sex marriage has been sanctioned by the court, presumably any two men or two women, regardless of sexual orientation, may get married.  Why not a couple of losers seeking the material benefits of marriage?  Oh wait, that movie’s already been made.

Secondly, do you suppose that if John McCain now said that it was time after all to go for the Federal Marriage Amendment, it would help get him elected president?  Couldn’t hurt . . .


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