A judge struck down a law (?) banning same-sex marriage

[conuly]

This wouldn't really be news, except that said judge is from Iowa.

Comments

[darkpoole.livejournal.com]

Not too surprising ... in the absence of a constitutional provision against same-sex marriage, almost any state with basic "equal protection" or "due process" type language in its constitution will guarantee a right to same-sex marriage. It's already been established for decades that "marriage" is a fundamental right, and a state needs to show some compelling public purpose to bar someone from getting married. That means a state needs to show some strong public policy reason to exclude gays from marriage, and there really isn't one. A judge doesn't have much of a choice about his ruling if he follows long-established legal principles of constitutional interpretation. (Of course, he can refuse to do his job and just write his own opinions into the constitution. This is why I get amused by right-wingers railing against "judicial activists" when they rely on judicial activism to push a lot of their agenda.)

Sadly, we've seen this before and it's probably going to play out the same way here as almost everywhere else: the legislature and voters will amend the state constitution to ban same-sex marriage, and nullify the ruling. So far, Massachussetts is the only state to dodge that particular bullet.

[sparkofcreation.livejournal.com]

Have to disagree there, given that the entire point of New Jersey's Supreme Court ruling on the subject was that while the benefits of marriage are a fundamental right, but the term is not. So it's far from true that "it's already been established for decades that 'marriage' is a fundamental right."

[darkpoole.livejournal.com]

Even the New Jersey Supreme Court acknowledged there was a fundamental right to marriage, but they decided that this fundamental right didn't actually extend to the right to marry the consenting adult of your choice. Instead, they decided that same-sex marriage wasn't a fundamental right, without actually addressing the issue as to why the sex of the spouses should matter. The majority decision, stripped down to basics, was that marriage is a fundamental right but when it comes to same-sex couples the legislature could call it something else if you want to. It was a politically-driven decision that was very shaky on legal grounds, and the dissent called them on it.

If you're interested, my own comments and analysis of the New Jersey court decision is here (http://darkpoole.livejournal.com/92412.html).

My point was that any judge who is honest about the law and long-settled principles of constitutional interpretation pretty much has to come to the conclusion that same-sex marriage is protected under both equal protection and substantive due process grounds. On the other hand, a judge who isn't intellectually honest can come up with some bogus reason to distinguish same-sex marriage (as the Washington Supreme Court did) or dodge the issue (as the New Jersey Supreme Court majority decision did).

[sparkofcreation.livejournal.com]

Did you read the decision? Because I remember precisely why they said that the sex of the persons involved matters.

[darkpoole.livejournal.com]

I not only read the decision, I summarized and commented on it extensively. Click on the link in my previous post.