Bench Memos

An Honest Pro-SSM Family-Law Scholar

More for those who care whether the evident triumph of the judicial redefinition of marriage is constitutionally legitimate:

Law professor and family-law scholar James G. Dwyer, who “strongly support[s] extending legal marriage to same-sex couples” but who “recognize[s] the distinction between something being the right thing to do and its being a matter of constitutional right,” has just published his near-final draft of a new article titled “Same-Sex Cynicism and the Self-Defeating Pursuit of Social Acceptance Through Litigation.” I haven’t yet digested the entire article, so for now I’ll just highlight these excerpts from his introduction:

[T]raditional marriage laws should easily pass rational basis review (even if “with bite”), if only judges could grasp and accurately characterize the state interest that actually differentiates same-sex couples from opposite-sex couples. The stream of victories for the Movement principally reflects weak lawyering by defenders of state laws, systematic distortion of the state’s long-recognized responsible-procreation aim by plaintiffs’ attorneys and sympathetic judges, and widespread adoption of counter-arguments so obviously flawed it seems unlikely the advocates or judges expressing them actually believe what they are saying. Judges must fear that regardless of what reason, precepts of democratic governance, or constitutional doctrine might counsel, if they rule against same-sex marriage they will be viewed ever after as having been on “the wrong side of history.” Willful obfuscation by liberal academics posing as `friends of the court’ might also have played a role.…

There is, then, much of what might fairly be characterized as cynicism coursing through the veins of same-sex-marriage advocacy and decision making, with little concern for larger political principles or intellectual integrity, and little interest in securing legal marriage for same-sex couples by convincing fellow citizens and their representatives, even among those with the power and responsibility to fix problems in state law by majoritarian decision making after public deliberation. The end result will be that same-sex marriage spreads throughout the United States on a tidal wave of unprincipled judicial fiat, culminating in a Supreme Court decision devoid of clear and intelligible rationale.

Why care, if one supports same-sex marriage? Apart from pollyannaish concern for the rule of law, and without repeating all that others have said about likely backlash, there is the fundamental problem … that courts cannot deliver what LGBT persons seem to want most –dignity. Court victories are hollow victories for the LGBT community, failing to deliver the societal respect they seek, and in fact removing the opportunity for collective expression of such respect through voluntary legislative reform or popular referendum. What they get is not acceptance by the people with whom they share a neighborhood, a political community, a State, and a nation. Rather, they get the power to force something on those people. They deserve better. 

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