Tuesday, May 26, 2009

Prop 8 Fate

Read the California Supreme Court's opinion in Proposition 8 case.

The court upheld a California Constitutional amendment banning same sex marriage. The majority wrote that it was not the court's job to address whether the ban is wise public policy, but to decide whether it is constitutionally valid, while setting aside personal beliefs and values. (at 3).


David Hutchinson said...

I looks like this court is in need of an empathy injection. And I'm not being flippant. I leave aside the general justness or not of state sanctioning of gay marriage in what follows.

This case is clearly one of those 5percenters President Obama means should be decided in light of identity empathy. It is possible, of course, to come down in this case as the lone dissenter did, without invoking 'empathy' (i.e. by sticking to legal principles): the court's earlier gloss on the state's constitution established a right that a subsequent assertion of the majority cannot undo. Alexis de Tocqueville famously and with dread spoke of the tyranny of the majority (which however seems preferable to a tyranny of the minority), and state and federal constitutions are at least partly there as countermajoritarian guarantees that rights will not come and go in successive popularity contests.

But what if that ground were not there for a judge to hang her hat on (i.e. that there was not a previous endorsement by the court of same sex marriage)? It seems in that case the president would want a judge(and expect a Justice Sotomayor)to find, ultra vires, that the will of California's majority is unjust and that it should be substituted for with the the enlightened jurist's idea of what is just (as her empathy gives her the power to see).

We all comfortable with that?

Marie T. Reilly said...

I'm seeing subtle irony everywhere these days and as usual, Hutchinson, you are all over it.