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Who’s to blame?

Posted by XT on November 10th, 2008 in US News


Bruce Ledewitz has an excellent post-morten on Prop 8. I’ll give you the meaty part:

Much blame goes to the California Supreme Court. That court struck down a state ban on same-sex marriage in a 4-3 decision in May, spurring the Proposition 8 campaign. Why don’t State Supreme Courts notice that federal courts, already burned by Roe v. Wade, leave gay marriage alone? The State courts keep treating this issue as purely a legal one without considering what we in the law call prudential matters—are people ready for it? Will the legal arguments be persuasive? What will happen next? Even the terms of court decisions make a big difference. A court can strike down a statutory ban on gay marriage but leave the decision in abeyance until the legislature can deal with it, leaving open all kinds of compromises, such as civil unions, differing terminology etc. Justice Scalia once said that Roe did not really aid abortion rights in the long run because it nationalized what had been building state by state compromises on abortion and created the pro-life movement. Courts are better threats than actors and judges should remember that.

Okay, the actor, actually actors, who are most to blame for Proposition 8 are the naton’s law schools, for failing to teach an organic constitutionalism that recognizes that governance is never just a matter of principle. Law is not a science but an art. And a Constitution does not belong to lawyers but to the people. Its interpretation must always ultimately remain their interpretation. Courts can only lead.

A lot of people blame “activist judges” (a term Bruce doesn’t use at all). But the problem here is strict constructionism. It is the simplest of all renderings – I look at the text, I note what it says and what it doesn’t say, then I regurgitate it with no respect or concern for the invidivual merits, problems, or circumstances facing the court.

It is the antithesis of the “law as art” argument that Bruce makes. It is a technician’s approach to law. Tab A goes in Slot B. No need to design a better slot. No need to make a prettier tab. Just shove the parts together and deal with whatever comes out.

Blame the law schools? Possibly. But, like so much else, they are simply microcosms and reflections of our larger society.

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    They can't hold off Gay marriage forever. All they are doing is buying time. As for whos to blame, I say look at religion.

  • http://www.xpatriatedtexan.com/blog ThurmanHart

    I'd say “Look to straight people.” There may have been a majority of people who attend religious services who voted for Prop 8, but I'm pretty sure that something close to 100% of them were straight. I don't want to be absolutist without proof, but it's hard to see many gay people voting to ban marriage equality.

    I belong to a church that is not only openly accepting of gays, but led by a gay pastor. Not all religious poeple are the enemy. But to get past the reluctance of religious people to allow marriage equality, we're going to have to speak to them.

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    Justice Scalia once said that Roe did not really aid abortion rights in the long run because it nationalized what had been building state by state compromises on abortion and created the pro-life movement. Courts are better threats than actors and judges should remember that.

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    I agree, I blame religion as well. Gay marriage will eventually take hold.

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    Oh, no the prop 8 debate. On a night when the dems won everything, you would have thought prop 8 would have gone differently.

  • http://www.seosandiegoca.com/ SEO San Diego

    Oh, no the prop 8 debate. On a night when the dems won everything, you would have thought prop 8 would have gone differently.

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