More information as it becomes available. While I’m happy for the couples who can now have the state recognize their unions as marriages, I fear that this decision will further divide the nation on gay marriage and embolden social conservatives.
UPDATE (decided to put this, likely my final update to this post) ahead of the others. I have now read or skimmed the entire opinion. I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution. His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender” as if the assumptions about a supposed social construction of gender had been proven true when, in fact, all serious psychological, sociological studies have shown the opposite. Not to mention studies of the human brain.
He fails to cite a provision of the federal constitution which prevents states from making distinctions based on sex difference, primarily because there isn’t one.
I will now put the rest of my thoughts, “penned” while reading/skimming the decision below the jump.
INITIAL THOUGHTS (HAVING READ/SKIMMED HALF THE DECISION: I have now read/skimmed the first 73 pages of the decision. I find some things I like and some I dislike. First, the dislike, the judge has a very hostile attitude toward the Proponents of Prop 8, adopting a condescending tone when addressing their points.
What I like is that he does make a strong case for the social benefits of marriage as an institution, the kind of arguments I believe gay marriage advocates should be making in legislatures and in courts of public opinion. We’ll see how well he relates them to the actual text and original meaning of the Constitution.
FINALLY! 109 pages into the opinion and we get conclusions of law. The judge cites the constitution, holding that “Due process protects individuals against arbitrary government intrusion into life, liberty or property.” Agreed, but he cites a court case not the legislative arguments in favor of amending the constitution to include what would be the 14th Amendment (wherein we get the due process clause.
Then, the judge, goes on to say that the “right to marry” is fundamental. Yeah, but has he read the actual text of Prop 8? It doesn’t addressed the “right to marry,” but what marriages the state recognizes.
He goes on to write that “Marriage has retained certain characteristics throughout the history of the United States.” Wonder if he’ll address sexual difference and sexual exclusivity, characteristics which marriage retained throughout that history.
Yup, he does, then he becomes sloppy, real sloppy, “The evidence shows that the movement from marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an understanding of gender rather than a change of marriage.” Say what? State-mandated gender roles? You mean the discredited notions of the social construction of marriage.
Too bad he fails to cite any (of the many) serious studies on sex-difference.
All that said, had the Equal Rights Amendment been ratified, he would have a point, but so far he hasn’t based his ruling on anything in the actual text of the constitution — but I’m still reading.
His equal protection argument is similarly sloppy, citing several cases, but offering little coherent argument to relate them to the facts of the matter.
Whoah, this guy is given more to popular jargon that to constitutional interpretation: “the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based on antiquated and discredited notions of gender.” Antiquated and discredited notions of gender? Discredited by whom? Sociologists writing in the 1970s, inventing a social construct out of thin air?
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