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.
topics:
Constitution, Law, Supreme Court, Unions
