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

Nexus Journal, Vol. 14, p. 91, 2008-2009

8 Pages Posted: 31 Jul 2009

See all articles by Lynn D. Wardle

Lynn D. Wardle

Brigham Young University - J. Reuben Clark Law School

Date Written: May 1, 2009

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 Classification: I28, J12, Z10

Suggested Citation

Wardle, Lynn D., Restructuring Democracy or Lawlessness? Critical Reflections on in Re Marriage Cases (May 1, 2009). Nexus Journal, Vol. 14, p. 91, 2008-2009, Available at SSRN: https://ssrn.com/abstract=1440336

Lynn D. Wardle (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

518 JRCB
Provo, UT 84602
United States
801-422-2617 (Phone)
801-422-0391 (Fax)

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