No sooner had I put the finishing touches on my subway search post, in which I analogized the Second Circuit’s abdication of responsibility in that case to the recent gay marriage defeats in New York and Washington States, than I came across this excellent CQWeekly editorial:
[T]he New York and Washington courts both said that legislators could have believed that children fare better in families with both a mother and a father as role models. Neither court had research to prove the point: There is none. Instead, as the New York court said in the main opinion, the supposed advantage was a “common sense premise” supported by “intuition and experience.”
Whatever quibbles one might raise about each of the points, both courts were guilty of an overriding lapse of logic. The issue in both cases was not whether marriage for opposite-sex couples is a good thing, but whether legislators had some reason — other than ignorance or prejudice — to deny those benefits to same-sex couples.
Precisely.
In law school you’re taught that jurors resolve questions of fact and judges resolve questions of law. You’re taught that appellate courts review findings of law “de novo” but must leave findings of fact “undisturbed.”
But what about an absurdity disguised as a fact? When, where, how and by whom does that get reviewed?
In New York State, if I remember correctly, a criminal conviction can be overturned on appeal if either there was reversible error or the verdict went against “the great weight of the evidence.” Where is that standard in questions of constitutional rights? Or when there is instead a “great void of evidence,” as in the gay marriage cases?
It cannot possibly be the proper function of a judge to perpetuate a farce.
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And if you need a more “Overlawyered” analogy than gay marriage: Who is going to be responsible for rescuing Merck from all those unconscionable Vioxx verdicts? That’s right — judges. Go figure.
4 Comments
Actually there is some powerful data about parenting.
There is Canadian data that show a much higher (a factor between 10 and 100) homocide rate when the parent and murdered child were not biologically related.
Justice Smith erred in the New York case. My second wife could not have children because of complications from a miscarriage (She did have a healthy daughter in her first marriage.) and I had a vasectomy, yet we got married for the employment benefits. Reproduction is highly coupled to marriage, but is not the be-all and end-all thereof.
Further, the Canadian data would speak only to foster care, including adoption. Children are not taken wily-nily from natural parents and given to others. Justice Smith constructed a straw man when he said that natuaral parents are better than gay couples.
The issue in both cases was not whether marriage for opposite-sex couples is a good thing, but whether legislators had some reason — other than ignorance or prejudice — to deny those benefits to same-sex couples
This assumes that we are talking about benefits. Anyone who’s been through the special hell of divorce court realizes that civil marriage is really an imposition by government, and any benefits exist merely to soften the blow.
As such, the finding that there is a compelling public interest served by opposite sex marriage justifies that imposition, and the limitation of the compelling interest justifies the limitation of the imposition.
The position will be wholeheartedly embraced by the first member of an “economically diverse” same sex marriage seeking to leave the relationship with his/her wealth intact.
Aargh. Another mind addled by a legal education. Kip, sometime long before law school, one is supposed to learn that, here in the US at least, there is a division of responsibility among branches of government, with the legislature taking on the job of writing laws. Which makes sense, as the legislature is the branch for which the term “democratic” is most appropriate. Deference is indeed most often the proper response when a judge is faced with a challenge to a legislative act, less so when a suspect classification is drawn or a fundamental right infringed, neither of which is applicable here (no, gay/not gay isn’t a suspect classification, and there’s no fundamental right to same-sex marriage, and the legislature didn’t purport to deny gays the benefits of traditional marriage, on the off chance that any gays would be interested in those benefits). With that in mind, please write 1,000 times: “It cannot possibly be the proper function of a judge to pretend he is also the legislature.”
“I disagree with the policy of the legislature” is not the same as alleging that a constitutional guarantee has been violated. The issue isn’t whether the legislature had a reason for its action, but whether the challenge to the legislation was supported by a showing that there was no reason for the legislature’s act, By pretending otherwise, you’re doing no more than paying lip service to the rational basis analysis which is appropriate here. You’re actually applying something that more closely resembles strict scrutiny, putting the burden where it doesn’t belong, on the state, rather than the individual challenging the legislation.
And finally — an analogy between upholding warrantless searches undertaken by police, on the one hand, and deference to a legislative act which retains a traditional definition of marriage, on the other? Forget about about absurdity disguised as fact. Here we have a real live case of absurdity (badly) disguised as constitutional analysis.
[Kip replies: I am a libertarian despite, not because of, my legal education. Still, I have never found the two to be inconsistent.
You either believe in limited government, or you don’t. You either believe that there are some lines that the majority may not cross, or you don’t. You either believe that individual rights exist independent of government, or you don’t. You either believe that judges striking down irrational laws is part and parcel of the democratic process, or you don’t.
You don’t. Message received.
Let’s hope you’re always one of the wolves and never one of the sheep when it comes time to vote on what’s for dinner.]
You either believe in limited government, or you don’t.
I do, and as I pointed out, your position is contrary to the concept of limited government. You wish to have a burden imposed by government where no compelling reason exists.
Civil marriage is a mechanism for fostering (some might say coercing) monogamy among those likely to breed. There is no call for the government imposing itself upon other types of relationships in such a manner.
By the way, Kip, I followed the links to some of your own blog entries on this. You’d be a more effective advocate for this cause if your rage weren’t so palpable in your rhetoric.