Strengthening Constitutional Self-Government

No Left Turns

California same-sex marriage

Here are the NYT story and the NYT political analysis.

Here’s the opinion. I’ll have more to say when I read the whole opinion, but will note a couple of things at the outset. First, it seems that the California Supreme Court has accepted the analogy between interracial marriage and same-sex marriage. Does this mean that any moral opinion opposed to same-sex marriage (or to homosexuality in general) is equivalent to a racial prejudice?

Second, the Court frames the issue in terms of whether the name "marriage" can be reserved to the union of a male and a female in a state where there are already substantial protections for domestic partnerships. It would be a different question, the majority says, if the domestic partnership legislation didn’t already exist. If other courts follow this logic, then there is a slippery legal slope from domestic partnership to same-sex marriage. The "moderate" position--accepting domestic partnerships but opposing same-sex marriage--would be untenable. For some, it might be serviceable as a political fig leaf, covering up a far-reaching agenda. For others, it would be an illusion, based upon the (mistaken) assumption that providing legal protection without the "Good Housekeeping" seal of (public moral) approval is possible. Folks who respond to appeals to their compassion even as they wish to hold onto their moral judgments would find that they can’t have it both ways. A possible consequence is less public willingness to accept the middle ground shown in this case to be untenable. There’s no ground on which a middle position can be based: for those who favor traditional marriage, the options are either victory or surrender.

Discussions - 2 Comments

If other courts follow this logic, then there is a slippery legal slope from domestic partnership to same-sex marriage.

Of course, the court started with their conclusion and then fished around for a pretext. If no domestic partnership laws had been passed then that would have been justification for the exact same court action.

Damned if you do, damned if you don't.

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