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Thursday, July 27, 2006
Courts - Dahlia Lithwick writes on state court judges and the gay marriage bans
They have two totally different approaches, one is differential and the other is irreverent, but Linda Greenhouse of the NY Times and Dahlia Lithwick of Slate are my two favorite legal journalists.
Today Ms. Litwick has an absolutely brilliant take on the thought processes of state court justices faced with the same-sex marriage issue. I'd like to quote the entire column, but you may read it for yourself here. It begins:
Let's say you're a justice on the Washington State Supreme Court. You have a nice life, a quiet life. Cozy chambers. Huggable clerks. And then in March of 2005, you hear oral arguments in a case about the state ban on gay marriage.Eighteen months later, the dumb decision is still pending. You've tossed. You've turned. What to do?
If you vote to strike down the ban, the president will take your name in vain. You'll be vilified as an "activist" in the national media. Bloggers will publish photos of your children and pets. You'll have to apologize for the courage of your convictions for the rest of your career.
If you vote to uphold the ban, on the other hand, you'll get to join your colleagues on the New York and Nebraska courts, who just did the same thing. You'll also find yourself in the warm embrace of your buddies on the Georgia and Tennessee courts (who ultimately ruled against gay marriage in recent weeks on narrower, more technical, terms). Nobody will excoriate you in the op-ed pages. Instead of causing widespread fury, you will unleash, at most, widespread resignation.
Still, you feel bad. You hold no personal animus toward gay people. You even think there is something slightly mean-spirited behind your state's Defense of Marriage Act. You talk it over with your wife/husband/clerks. It's a pickle. Months pass.
Until you hit upon the solution: Shift the blame. Make the legislature the bad guys. Find a way to frame the ban on gay marriage that makes it impossible to strike down. Rule that unless the ban is utterly insane, it's constitutional. Suggest that as long as the legislature passed it, it must be rational. Use the word "deferential" six times.
Posted by Marcia Oddi on July 27, 2006 02:11 PM
Posted to General Law Related