West Law Report

Dissent on the same-sex marriage ruling

Posted in Same-sex marriage by mrkooenglish on May 17, 2008

(1)
Both dissent opinions are saying that the court would not be the best place to settle the problem. Judge Baxter:

In a dissent, Justice Marvin Baxter agreed with many arguments of the majority but said that the court overstepped its authority and that changes to marriage laws should be decided by the voters. The majority should have deferred to the Legislature on whether to allow same-sex marriage, particularly given the increased legal protections for same-sex couples enacted in recent years. “But a bare majority of this court,” Justice Baxter wrote, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.”

Judge Corrigan:

Also dissenting, Justice Carol A. Corrigan wrote that her personal sympathies were with the plaintiffs challenging the bans on same-sex marriage. But Justice Corrigan said the courts should allow the political process to address the question.

“We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root,” she wrote. “If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

(2)
Dahila Lithwick, the editor, wrote in Slate that the two Judges just don’t want like to be called “activist”.

Not to be outdone as the winner of the “I am not an activist” Olympics, Justice Carol Corrigan opens her dissent with the announcement that she is so not an activist that even though she personally believes that Californians “should allow our gay and lesbian neighbors to call their unions marriages,” the court nevertheless overstepped its bounds in striking down the state marriage laws. Writes Corrigan, “[T]he principle of judicial restraint is a covenant between judges and the people from whom their power derives. … [I]f there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

Justice Corrigan’s model of judicial restraint is not quite constitutional originalism or even John Roberts-style minimalism. Like Baxter, she espouses some kind of shabby-chic jurisprudence in which state statutes endure a constitutional distressing process that allows them to become more and more constitutional over time. Standards and values can change, she allows, but only when the people have lived with those changes for some set period of time. It’s not so much that the majority is “activist,” therefore. Their real problem is that they are somehow “tacky.”

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