Bil Browning

I have a headache.

Filed By Bil Browning | November 06, 2006 3:51 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: court decisions, Indiana, LGBT civil rights, marriage, New Jersey

I have read a great many of the court decisions about freedom to marry. I had just finished the warped concurring opinion from the sovereign state of Washington when Chris's post appeared, requiring me to go and read the trial court's ruling on the motion to dismiss in Morrison v. Sadler (the recent Indiana case). I had read the appeal court's opinion a while ago.

My headache comes from trying to follow the circular logic of all the judges who have upheld marriage discrimination (Massachusetts--dissent; New York; Washington; Indiana; and to a degree, New Jersey). The same results-oriented logic poisoned the marriage debate in Canada a couple of years ago.

From the bald statement that "traditional marriage" is unchanged since the Garden of Eden to the shameless attempt to say that Loving v. Virginia did not recognize a "right to marry the person of your choice", there is little in the opinions that is not twisted and deceitful.

All the plaintiffs in all of those cases claim, under various clauses of various constitutions, the right to marry the person of their choice; the right to participate in civil marriage under the laws that govern them on an equal basis with their fellow citizens.. In all of those jurisdictions, such a right is fundamental (to one degree or another and in various ways and traditions), subject to certain restrictions. It is significant that those restrictions are negative; the state expresses an interest in preventing certain marriages. We can include all those restrictions under the head of being unable to contract. You cannot contract if you are under age; you cannot contract if you are not human; you cannot contract if you are in a position of inferiority that impeeds your independence. The restrictions on consanguinity have to do with health. Civil marriage is a contract; if you cannot contract, you cannot enter in to it.

The new restriction seeks to ban gays and lesbians, from equal access to marriage. It is signal that the judges who rule in favor of the ban, do not address the inequity of this ban, but pretend that what is at stake is merely a special deal for straights. This move removes the plaintiffs, gays and lesbians, from the argument. They do not argue that straights should not marry, but that they should be allowed to participate. The answer they get is that they have not successfully argued that straights should not marry; or that they do not have a special right to "gay marriage".

In all the cases, the offending justices queer the game (pardon me) by declaring that plaintiffs' claim a right to same-sex marriage which they do not find in the applicable constitution. Pardon me again, but plaintiffs did not claim a right to same-sex marriage any more than they claim a right to same-sex equality; they claim the only kind there is; the kind that the New Jersey court recognized when it said that, if the state recognizes the equality of gays and lesbians, which their legislature clearly and emphatically does, then it cannot abridge that equality or their constitution has no meaning.

That ruling does not apply directly to Indiana, more's the pity. The legislature of Indiana does not recognize the equality of gays and lesbians, despite clear polling to indicate that the people of Indiana favor it. And the equal protection parts of Indiana's constitution have no meaning, and not just for gays and lesbians. Chris is absolutely correct that the Indiana courts, in a breath-taking display of judicial arrogance and activism, have overruled, not the legislature, but the people themselves, by coming to the conclusion that there really is nothing that the legislature could do that the courts would rule denied equal protection; any imaginable reason would justify discrimination, according to them, and any class, no matter how badly drawn in relation to that reason would hold. Thus they have taken it upon themselves (their unelected selves) to repeal (for practical purposes) between one and three sections of our constitution. That, not doing their job of making sense out of conflicting legislation, is the true judicial activism. (See the excerpt from Chief Justice Marshall's ruling in Marbury v. Madison I just posted.)

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