Same-Sex Marriage: Who Decides -- Calif. voters have, byinitiati ve

[Volokh, Eugene]

    It's hard to tell exactly what the governor's office said, given
that the quote is likely only an excerpt.  But I take it that many
people's view -- quite likely including the governor's -- is that when
the voters have spoken, the legislature shouldn't undo that (at least
until much more time has passed).  If that's so, then the only reason
for the voters' will to be rejected would be if Prop. 22 is
unconstitutional, which the courts are deciding right now.
 
    Eugene

-----Original Message-----
From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
Sent: Wednesday, September 07, 2005 9:56 AM
To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: Re: Same-Sex Marriage: Who Decides -- Calif. voters have,
byinitiati ve



In a message dated 9/7/2005 12:41:57 PM Eastern Standard Time,
VOLOKH at law.ucla.edu writes:

I read the L.A. Times article, and my sense is that Mark's take
is correct:  The governor's office thinks that the court's decision
about *what the voters have already decided* should control.  Here's the
more full context:


        I don't know what the Governor's position on same-sex marriage
is, but doesn't anyone else find it puzzling why the court is the
appropriate institution to settle a conflict between the Legislature and
'what the voters already decided"? Surely, the voters can do that by
throwing the faithless legislators out of office.  And isn't it hornbook
law that what justifies the "countermajoritarian" role of the courts is
their defense of minorities, not majorities? It would be odd, wouldn't
it, if a countermajoritarian institution such as the courts should be
the best institution to settle disputes between the people and their
legislators when the former are fully able to do that while at the same
time not protecting minorities from conceivably--I stress
conceivably--biased majorities.
 
        And what if the courts decide against the voters for the
initiative in favor of the legislature--however inconceivable that might
now be--will opponents of same-sex marriage begin the drum beat again
against the courts? 
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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