Bench Memos

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California Marriage Ruling: A Few Comments


Just a few quick comments:


1.  The majority itself concedes that “[f]rom the beginning of California statehood, the legal institution of marriage has been understood to refer to a relationship between a man and a woman.”  But it fails to recognize that that is an essential characteristic of the very “right to marry” that it is construing—and that no one, until recent years, would have pretended otherwise.


Is there anything in the court’s concocted “right to marry” that would prevent it from being invoked by, say, practitioners of adult incest or plural marriage?  On the latter:  Oh, sure, the court repeatedly speaks of “couples”, but that’s because no plural marriage was at issue.  What in the court’s reasoning, what in its principles will prevent the extension of the right to marry to those whose own sense of “personal autonomy” and of “family” calls for plural marriage?  (Perhaps there is something:  I haven’t yet read carefully through the entire 121-page majority opinion.)  [UPDATE:  I now see that footnote 52 attempts—unsuccessfully—to distinguish polygamy and incest on the ground that “our nation’s culture has considered [those] relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”  Similar considerations would seem to explain why voters haven’t redefined marriage to incorporate same-sex couples.]


2.  The majority offers the usual false assurances that its task “is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership …, but instead only to determine whether the difference in the official names of the relationships violates the California Constitution….  Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.”  (Emphasis in original.)


Oh, please.  Spare us the pompous nonsense.  I’ll repeat, with minor changes, what I had to say about the New Jersey supreme court’s similar (but marginally more modest) ruling in October 2006:  This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades.  So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text.  Not a single justice in the majority did a simple sanity check:  Is it remotely plausible, remotely compatible with democratic principles, to read the state constitutional provisions as supporting the court’s result? 


3.  I’ll note again that California voters will likely have the opportunity in November to override the court’s decision.  I wish as well that voters could give the justices in the majority the Rose Bird treatment (see This Week for Nov. 4, 1986), but if I understand California law correctly, the earliest any of them will face a retention election is 2014.

Tags: Whelan


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