Same-Sex Marriage: Who Decides?

Volokh, Eugene VOLOKH at
Thu Sep 8 14:36:43 PDT 2005

	It seems to me that we need to distinguish two sorts of court
action.  One is when courts take quite general language, interpret it in
ways that its democratic drafters likely didn't intend, and do so to
invalidate democratically enacted rules (especially ones that track
longstanding tradition).  The second is when courts are called on to
apply fairly specific language to prefer one democratically elected
judgment over another that is constitutionally subordinate to it.

	It may well be that both actions are quite legitimate, at least
in some situations.  But they aren't the same.  It certainly seems to me
quite plausible for people to oppose the former, and support the latter.
Thus, someone might consistently say that (1) the state equal protection
clause ought not be used to strike down longstanding rules related to
marriage, but (2) the explicit state constitutional provision that says
that statutory initiatives may not be overriden without a popular vote,
plus the recent and explicit state statute that says "Only marriage
between a man and a woman is valid or recognized in California," should
be used to strike down a new statute that allows same-sex marriage.


 -----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of RJLipkin at
Sent: Thursday, September 08, 2005 1:24 PM
Subject: RE: Same-Sex Marriage: Who Decides?

        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

        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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