Same-Sex Marriage: Who Decides?
RJLipkin at aol.com
RJLipkin at aol.com
Thu Sep 8 13:24:20 PDT 2005
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.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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