Restructuring Democracy or Lawlessness? Critical Reflections on in Re Marriage Cases

Abstract:     
This essay argues that the decision of the California Supreme Court legalizing same-sex marriage was beyond the competence and legitimate authority of the court, and that the 121-page slip opinion of the majority was “padded for pedantic display.” The passage of Prop 8 by 600,000 votes (52.3% to 47.7%), in which 2 million more voters voted for Prop 8 than voted either for Governor Schwarzenegger or Senator Feinstein when they were reelected by “landslides” in 2006, and with nearly the same percentage of the California vote that Barack Obama received nationally in what was considered a “mandate” in the same 2008 election, represents the clear will of the people of California. Attorney General Brown’s argument that Prop 8 (which he was supposed to defend) should be declared unconstitutional because it would reverse an “inalienable right” was inconsistent with any principled theory of constitutional interpretation, and the lawless acts that targeted supporters of Prop 8 following its passage in California is linked to the lawlessness of the court’s ruling in legalizing same-sex marriage.

Keywords: California, family law, marriage, same-sex marriage, legitimacy, separation of powers, democracy, self-government, judicial restraint

JEL Classifications: I28, J12, Z10

Accepted Paper Series