Saturday, October 07, 2006

The California appeals court decision rejecting same-sex marriage

Here is the Marriage Cases decision from the intermediate appeals court in California.

The dissent quotes heavily from Justice Carrico's opinion in the Loving case, making the point that the majority's reliance on history is no more valid than what Justice Carrico wrote, which was overturned by the U.S. Supreme Court.

Worth reading is the concurring opinion, which says in part:

"I also write separately to identify a major difficulty with all attempts at reasoned dialogue about this subject. There is a legitimate and meaningful disagreement in this country, and in many places around the world today, about what marriage is and should be. Over the last 30 years we have seen a gradual reconfiguration of family; merging models of family exist alongside traditional models. We have also witnessed an expansion of personal freedom to express who one really is that is desirable if each person is to become who he or she was created to be. The roots of the disagreement over what marriage should be necessarily intertwine cultural, societal, and religious ideas. There is a great tendency, out of zeal to eliminate genuine inequities, to be swayed emotionally and to overreach in applying legal principles. My colleague has done so in his dissent. Justice Kline writes passionately of the “profound nature of the liberty interest” at stake (dis. opn., post at p. 47) and of “autonomy privacy,” (dis. opn., post at pp. 9, 22) but does not cite a single case where the asserted liberty or privacy interest has been identified as he would have us recognize. Most of the cases he relies upon are cases where the rights at issue have been discussed in the context of marriage as it has been understood historically, or in situations that criminalize acts of sexual intimacy. In the end the dissent advocates, from cases that do not lead inexorably to such a result, the existence of a fundamental right to participate in an institution that as historically defined excludes such individuals."

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