The bright side of lex talionis
MetaLawEcon: Lawyers, economists, and philosophers on legal research

Same-sex marriage case continues in California

Mark D. White

The Wall Street Journal today reports on the ongoing legal struggle over same-sex marriage and Proposition 8 in California, with a three-judge panel of the Ninth U.S. Circuit Court of Appeals hearing both substantive arguments as well as arguments regarding standing Monday.

Several things stood out to me from the article, such as this:

Charles Cooper, representing, said the court had to address whether the definition of marriage was an issue that "the people themselves can resolve through the democratic process…or whether our constitution takes that out of their hands."

Regardless of our substantive differences of opinion about same-sex marriage itself, Mr. Cooper highlights the essential issue of political philosophy behind this case: is eligibility for marriage an appropriate matter for democratic vote, or would that represent a "tyranny of the majority" by allowing a majority to limit the essential rights of a minority? Reasonable people will disagree on this, depending on their view of the purposes or nature of marriage, and whether the right to marry the person of your choice is an essential right or is instrumental to a larger purpose (as in the defense of traditional marriage and childrearing as the bedrock institution of human society).

Senior Circuit Judge Michael Hawkins presumably takes the essential right view, "asking whether the people of California could reinstitute school segregation. 'How is this different?'" (The more direct analogy would be the bans on interracial marriage overturned in Loving v. Virginia, but apparently he wanted to make a broader argument.)

Mr. Cooper, as with other traditional marriage proponents, makes an instrumental defense of traditionl marriage, which (according to him) was "designed to channel 'sexual relations between a man and woman' to raise children in stable families." (Clever, that "design argument" for traditional marriage--no mention of whether it was intelligent design!) Judge Stephen Reinhardt makes the obvious reply: "That sounds like a good argument for prohibiting divorce." In other words, if people want to argue that alternative institutions will compromise the "intended goals" of traditional marriage, they should first explain how aspects of traditional marriage have not compromised those same goals (and why it should still enjoy privileged status).

The immediate fate of the case may turn, however, on issues of legal standing rather than the merits of same-sex marriage itself. I fully recognize and appreciate the importance to the legal system of ascertaining proper standing before a case can proceed, but I hope those issues can be resolved so this case can move forward, rather then get tied to a procedural muddle for months or years to come.


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