The Spectacle Blog

Re: Constitutionalism, California Style

By on 5.18.08 | 11:01PM

The Chapman column that Jim linked to below sums up most of my thoughts on In re Marriage Cases, but it's worth underlining the ruling's intellectual dishonesty (or sloppiness, if one is inclined to be charitable). Since California's domestic partnership law provides virtually all the substantive benefits of marriage, the only issue was whether it is constitutional to create a marriage-like institution for gays that isn't called "marriage." The Court claims that "The only out-of-state high court decision to address a comparable issue is the decision in Opinions of the Justices to the Senate" (in which, at the request of the legislature, the Massachusetts Supreme Court advised that a pending civil unions bill wouldn't be acceptable), and that in their civil union cases, "the Vermont Supreme Court and the New Jersey Supreme Court specifically reserved judgment on the analogous state constitutional question that would be presented should the legislature decide to extend to same-sex couples the substantive benefits, but not the official designation, of marriage. To date, neither of these courts has addressed this issue."

That just isn't true. The New Jersey Supreme court quite explicitly addressed the issue of whether same-sex unions have to be called "marriage" in Lewis v. Harris: "The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process," the New Jersey high court held. The In re Marriage Cases ruling actually cites a dissent from Lewis v. Harris even as it ignores and mischaracterizes the majority position in the New Jersey case.

It's obvious that Chief Justice George made his decision without studying the case law, and only then sent his clerks to find precedents he could use to reach his foregone conclusion.

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