15 May 2008

A sad day

A quick post, as today has been a hectic day at the office.

One of the joys of working at a well-connected firm that is involved in high profile cases is that I get the scoop on these cases before they become public knowledge. Such an instance came today, when I heard about the result in the case challenging the California same-sex marriage ban and had read much of the opinion before it became public. The Becket Fund filed an amicus brief in this case, hence how we knew of the decision before it was released to the news outlets.

The verdict was that the ban is unconstitutional, thus making California the second state (after Massachusetts) to allow gay marriage. What I can't understand is why the plaintiffs were challenging this law in the first place. Before this case, California had one of the most liberal and inclusive civil union systems in the country. Same-sex couples could enter these unions and receive virtually all of the important benefits that come with being married, such as survivorship rights, custodial rights of children, etc. In fact, the court explicitly stated that this was the case. Apparently still not satisfied with what they did have, however, the plaintiffs filed suit, claiming that the same-sex marriage ban was unconstitutional because it violated due process and the right to privacy.

From what I can tell, the reasoning used by the California Supreme Court wasn't faulty. Unfortunately, however, it highlights the main recurring problem with a large part of our judicial system today: basing cases on the mythical right to privacy. The court followed in the footsteps of such well-reasoned decisions (sarcasm, in case you couldn't tell) as Griswold v. Connecticut and Roe v. Wade, which held that a right to privacy can be gleaned from the provisions of the Constitution. For those of us who believe that the Constitution, you know, means what it says, this is somewhat problematic, as there is nothing close to a right to privacy anywhere.

I'm trying not to stress the moral aspect of this whole issue (though obviously anyone who knows me knows how I feel about gay marriage), only how it keeps being made clear to me that judicial thought in this country went downhill long ago.



Melissa H-K said...

Here's the thing of it. If domestic partners have virtually all the same privileges as spouses but not all of them, why would gay people be satisfied with that? Plus domestic partnership isn't always portable from state to shining state. If that were the only option I had, I would certainly want to make marriage legal.

Religion doesn't always have to be reflected in the law. Catholics don't try to get all divorce laws repealed, for example.

Abortion is a different matter. If there is any doubt that a fetus is a person, we should give the fetus the benefit of the doubt. (I don't think there is any doubt, of course.) You don't have to be a Catholic or even a Christian to know that killing a helpless person is just wrong. So at least we agree on that. :-)

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