Judicial Regimes and Same-Sex Marriage: Enforcing Judicially Determined Personal Autonomy at the Expense of Majoritarian Democracy

Abstract

In this article, the author discusses the Marriage Cases opinion issued by the California Supreme Court in May of 2008. In that decision, a majority of the justices of the California Supreme Court concluded that the California Constitution requires affording the designation of marriage to same-sex couples. Though the article focuses on California, the article is equally applicable to other opinions discussing same-sex marriage. The paper is quite timely in light of the recent decision concerning the validity of Proposition 8 and the federal challenge to Proposition 8. (The views expressed in the article do not necessarily represent the views of the agency or the U.S.)

Keywords: marriage cases, proposition 8, same-sex marriage, judicial activism, perez, fourteenth amendment, equal protection, inherent in the people, california constitution, loving, varnum, kerrigan, lawrence, perry, schwarzenneger, goodridge

JEL Classification: K19