Massachusetts SC did it last presidential election and now California is doing a repeat.
With the added twist that the Court just overruled Prop 22, a ballot referendum expressing the wishes of the people of California that marriage remain between a man and a woman. There wasn't a similar referendum in Massachusetts.
For their pains, it's very likely that the people of California will pass a constitutional amendment this November again expressing their wish that marriage remain between a man and a women. I bet lots of people will vote for it who don't care about gay marriage, just to tell the Court who's boss.
The logic of the CA Supreme Court was essentially an equal protection clause argument: that since sexual orientation, like race, was a special protected group, you had to apply "strict scrutiny" to any law that discriminated against them, and the anti-gay marriage statute didn't pass strict scrutiny.
Here's the question: are bisexuals also covered as a special protected group? If so, don't they get to marry two people?
There are many slippery-slope arguments that lead from gay marriage to legalizing polygamy. This seems like a strong one to me. (I would think the fact that polygamy is a custom with thousands of years of history and religious sanction from several major religions would be a stronger one, but that's not how the courts seem to function.)
Eugene Volokh has a good discussion at
law.ucla.edu
where he points out that though the law doesn't always slide down slippery slopes, there were promises made that anti-discrimination laws and civil unions wouldn't slide down the slope to gay marriages, which of course they have done. Volokh points out the possibility of an "attitude-changing slippery slope," where the new law changes attitudes as it wins societal acceptance.
He thinks the chance of slippage from gay marriage to polygamy is small. I am not so sanguine. Between bisexuals demanding to marry two people and Muslims and FLDS demanding their religious freedoms and rich men demanding to marry their mistresses without the hassle of divorce or alimony, I don't see the courts manning that barrier for too long. |
