Same-Sex Marriage: Who Decides?

[RJLipkin at aol.com]

I haven't been able to  faithfully follow the development of this thread, but 
does the legislative  history of the recent bill reveal why the legislators 
enacted it in the face  of, what some have argued, is its obvious conflict with 
Prop. 22?   This together with the related position that Prop. 22 clearly 
trumps the  recent bill makes its passage incomprehensible.
 
        Please note this thread  started with the query of whether opponents 
of same-sex marriage can resort to  the courts despite repeated pronouncements 
that the legislature (and I would add  the electoral process) are the 
appropriate institutions to resolve the  conflict. Should the California courts 
strike the legislation down in favor of  Prop. 22, those opponents should excoriate 
the California courts just as it did  the Massachusetts courts?  Shouldn't 
they? There may be certain differences  between the two cases, but at bottom if 
there's a political or electoral means  to resolve a conflict, should 
opponents of same-sex marriage resulting  from judge-made law exploit those means and 
eschew the courts?
 
        The question of the bill's  constitutionality and the question of who 
decides this are two significantly  different questions, and if one is 
opposed to the courts as an answer to the  latter question in one case, shouldn't 
consistency require opposition in other  cases? Selectively choosing who decides 
in different cases when the  selected arbiter chooses in one's favor on the 
merits, no matter how  strongly one is persuaded that selective answers to the 
institution question are  required, permitted, or reasonable, is always a 
questionable sell in a society  split on just about every relevant conceptual and 
moral issue touching these and  other conflicts.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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