Uncommon Law
By a 4-3 vote, the California Supreme Court has declared a state ban on gay marriage is illegal. When I read this I immediately checked Eugene Volokh to see the slippery slope implications, and I wasn't disappointed.
The question here isn't whether gay marriage is a good idea or not, but whether the issue should be decided by judges or legislators. Of course, gender issues are so often constitutionalized I can't say the decision is a surprise.
posted by LAGuy @ 12:33 AM
6 Comments:
Since you are in Calif., please post a notice as soon as a couple that are not "romanticly inclined" (say two sisters or a son caring for his elderly mother) apply for a marriage license in order to avail themselves of the benefits that accompany a state marriage license. The Calif. S.Ct. has found that the right to marry the person of your choice is a fundamental right. I see no way that the state can therefore exclude from its marriage licensing policies any two people who want to marry each other.
Gay rights has always struck me as ideally suited for resolution by the courts. One of the courts' primary jobs is protection of minority groups' individual rights against the tyranny of the majority. Of course, that only raises the question of whether marriage is a fundamental individual right...
I believe the Court discussed the fundamental right to marriage in Loving v. Virginia (1967), where they overturned a miscegenation law.
Surely then they must overturn the incest laws.
(1) If two men wish to marry each other, the state cannot possibly have an objection if they happen to be brothers. The traditional objections surely hold no weight with the court, and the genetic objections to incest obviously don't apply to same-sex marriages.
(2) And then, once it has been established that two brothers can marry, the court's odd version of the Equal Protection Clause will necessarily extend this to the brother-sister case as well.
Fortunately (or not), three-move checkmates don't work in court. If logical result B follows naturally from proposition A which has already been accepted by the court, but logical result B is distasteful, the court will ignore logic and decide not-B. It's happened many, many, many times.
You can't discriminate on the basis of sex, or sexual orientation, but there's a long history of legal discrimination along family lines.
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