Courts Crystallizing

A law professor does a nice, full treatment of who favors court action on same-sex marriage, where and why. In Going Courting, Robert Justin Lipkin ends up calling for pro- and anti-SSM folk to be consistent in Massachusetts and Maine, for or against court action, and for or against legislative action.

Note: If you want the real detail and analysis, head to his paper, The Harm of Same-Sex Marriage: Real or Imagined. Click one of the download sites to grab a PDF of the 34-pager.

He cautions that folks who think a ballot initiative, court decision, or new law will settle this issue anywhere will remain surprised and disappointed. It will be fought on all those fronts in a given state until resolution. Lipkin has a way of grabbing the legal essence of the issues, for example:

The obvious question is why the courts should be involved at all. Arguably, the people voted to keep their state free of same-sex marriage; yet, the people's representatives voted to permit it. Even emphasizing the important question of whether the assembly, according to state law, can pass such legislation without an initiative repealing Proposition 22, why shouldn't the people themselves be the final arbiters of this conflict? If a majority of California citizens oppose the bill, let them replace the errant legislators with ones more faithful to the people.

The other striking irony here is that majorities are powerful and typically don't need courts to fight their battles. By contrast, minorities are almost by definition weak at the ballot box, even if vocal, and the courts possess the power and authority to protect them from majority bullies. Indeed, protecting minorities is often advanced as the courts' raison d'etre. Thus, if courts should be involved in the same-sex controversy at all, it should be to defend proponents of same-sex marriage from conceivably biased majorities. A conscientious opponent of same-sex marriage should then ruefully approve of the Massachusetts court's role in protecting same-sex couples, even while rejecting the particular decision the court embraced. In Massachusetts, the court should decide because gays and lesbians are too weak to win in the legislature, and if the legislature denies them constitutionally protected rights, the courts must step in. By contrast, the powerful majority of Californians can easily flex their political muscles and settle the conflict between the legislature and Proposition 22 without involving the courts.