Wednesday, July 26, 2006

Breaking Legal News!

The Washington Supreme Court has upheld that state's law restricting marriage to a union of one man and one woman. The vote was 5-4.

This places in perspective the argument tht the Marriage Amendment is unnecessary because same-sex marriage is already illegal in Wisconsin. It was illegal in Washington too, but with one more vote, it would have suddenly become legal. You can argue that we should have same-sex marriage, but when your side is arguing that it is constitutionally compelled, you cannot honestly claim, if we are to keep the traditional defintion of marriage, that the amendment is unnecessary.

11 comments:

Mixter said...

I don't recall the constitution having an opinion on marriage one way or the other. (Not being a scholar of Wisconsin's constitution, I could be wrong.) However, should we amend the constitution to discriminate against a particular segment of our society? I don't think we should.

I really don't see what the big deal is anyway, except that certain people want to legislate their particular brand of morality. I don't understand how same-sex marriage would threaten my marriage in any way, which is one of the arguments opponents of same-sex marriage use.

Mixter

Rick Esenberg said...

Mixter

It doesn't have a thing to say on it which is the precise point of the Washington court's decision. It ought to be up to the legislature, and not the courts, to define marriage.

But since courts won't keep their hands off it, opponents of same sex marriage have found it necessary to make it clear that the constitutions of their various states do not create a right to marry a person of the same sex.

Had the proponents of same sex marriage not tried to impose their will by judicial fiat, none of this would be happening. That's why amending the constitution has come to be an issue.

Michael J. Mathias said...

I'm sorry, but don't you claim to be a lawyer? If you think the law gives you a right to do something that the state is preventing you from doing, and if the state refuses to act on your behalf, do you have any other option besides asking for the courts to intercede on behalf of, well, justice? How is a citizen asking for equal protection under the law representative of judicial fiat?

Mixter said...

I've got to agree with Michael on this.

Besides, why does there need to be a "definition" of marriage? Why does anyone else care how two consenting adults choose to live their lives? Why shouldn't same-sex couples have the same rights as anyone else?

Mixter

Rick Esenberg said...

Michael

That's fine, although I think the argument that the United States - or Wisconsin legislature - can be fairly read to give you a right to marry a person of the same sex is a poor argument. albeit one that activist judges might buy. No one would have dreamed that equal protection guarantees (which, for reasons I can't get into here, are not and cannot be read to require equality in all things)conferred such a right.

But - if you think you can win such a case, go for it. But then don't be disingenuous by suggesting that there is no "need" for a constitutional amendment because same sex marriage is already "illegal." You can't make that argument and then simultaneously argue that the constitution requires that it be legal.

As for the merits of same sex marriage, I blogged on this in March. I can think of lots of reasons that same sex marriage might be harmful to traditional marriage, although I can't say that I know for certain that any of them will occur. Given the centrality of traditional marriage to our society's well being, it may be preferable to move slowly on things like this. But that's all a subject for another post.

The one thing that would be a disaster is for same sex marriage to be imposed by courts.d

Dad29 said...

I'm confused.

Mixter tells us that "certain people want to legislate their particular brand of morality..."

That would be the Gay Activists, no?

THEY impose their "morality" through blackrobed jackasses such as found in the Mass Supreme Court.

Mixter said...

Dad29, you are confused, obviously. I was, of course, referring to the radical anti-gay activists. And I used the word "legislate," which would not be through the courts. That might have been your other clue. Great comeback, otherwise...

Mixter

Dad29 said...

OH, yeah, that's right, Mixter.

The BlackRobe judiciary-class merely IMPOSE their version of "morality"--they do not "legislate" their will. IOW, they attempt to substitute positive law for the Natural Law.

Sorry.

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