Commentary on California Appellate Decision on Marriage

Yesterday, an intermediate appellate court by a vote of 2-1 overturned a lower court decision which had previously declared California's same-sex marriage ban unconstitutional. Oddly, the main thrust of the majority's argument was that the question of whether same-sex couples be allowed access to civil marriage should be decided by the Legislature. Of course, when the Governor vetoed the Religious Freedom and Civil Marriage Protection Act he said that the same question "should be decided by the courts, not legislators."

Two of the states branches of government are treating the marital hopes and dreams of same-sex couples like a hot potato. It’s unfortunate that most judges do not seem to be able to make the relatively simple intellectual connection between the opposite-sex restriction in marriage and the impact it has on same-sex couples and their families. The rationale that judges can not “redefine” the definition of marriage because “throughout time” same-sex couples have not been able to marry is circular logic. In the 1970s there were some attempts at same sex marriage and in those rulings judges would say things like “The state need not recognize this [marriage licence application], because what defendants have proposed is not a marriage.” This is basically jurisprudence by dictionary!

One would have thought that by 2006 judges would be educated and disciplined enough to realize that the issues are too important to be decided with simplistic and anachronistic reasoning.