This Los Angeles Times story about California Chief Justice Ronald George pretty much dispels the notion that the gay marriage ruling had much to do with applying the state’s constitution and written law. We hear about George’s gay friends, his comparison of the same-sex marriage debate to the civil-rights movement of the 1960s, his conviction that “there are times when doing the right thing means not playing it safe.” All of this would be perfectly legitimate, even admirable, if George were a legislator. But he’s not a legislatior. He’s a judge.
For all the legal arguments judges in Massachusetts, Hawaii, Vermont, California and elsewhere have raised on behalf of judicially imposed same-sex marriage, their decisions ultimately hinge on policy questions: the fundamental purpose of marriage, questions of legal recognition for same-sex couples, the link between marriage and childbearing, and whether we’re ultimately talking about the definition of marriage or the exclusion of some group of people from the institution of marriage. There are certainly arguments to be made for the pro-gay-marriage positions on each of these policy questions. But these questions are best left to legislators, not judges.
UPDATE: Stephen Chapman, who supports same-sex marriage as a matter of policy, has a similar take on the California decision. And while I’m linking to stuff, here’s a TCS Daily piece I wrote a while back warning against overly broad defense-of-marriage amendments that impinge on freedom of contract.
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