Marriage Decision’s Most Infuriating Passages

Three passages from Justice William McGuiness’ opinion in In re Marriage Cases [*pdf] guaranteed to infuriate gay rights supporters: 

1)  “While same-sex relationships have undeniably gained greater societal and legal acceptance, the simple fact is that same-sex marriage has never existed before. The novelty of this interest, more than anything else, is what precludes its recognition as a constitutionally protected fundamental right.”

2) “Indeed, because registered domestic partners enjoy nearly all the same rights and responsibilities as married couples, to the extent California has the power to provide them, the quarrel here is largely symbolic, albeit highly significant.” 

3) “Everyone has a fundamental right to ‘marriage,’ but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings.”

Three passages from Justice Joanne Parrilli’s separate concurrence guaranteed to infuriate gay rights supporters:

1) “The [Domestic Partners Act] seems to recognize that at this stage, we do not know whether the state must name and privilege same-sex unions in exactly the same way traditional marriages are supported. The nuance at this moment in history is that the institution (marriage) and emerging institution (same-sex partnerships) are distinct and, we hope, equal.”

2) “The inequities of the current parallel institutions should not continue if one group of citizens is being denied state privileges and protections attendant to marriage because they were created with a sexual orientation different from the majority, if we are to remain faithful to our Constitution.” [Note: Yes, she voted against recognizing a constitutional right to same-sex marriage.]

3) “The courts must move only at the pace, and within the limits, the law permits.” 

One passage from Justice J. Anthony Kline’s dissent guaranteed to infuriate conservatives:

1) As Justice Scalia has observed, the majority opinion in Lawrence leaves no room to ‘deny the benefits of marriage to homosexual couples excercising “the liberty protected by the Constitution.”‘ (Lawrence, supra, 539 U.S. at p. 605 (dis. opn. of Scalia, J.)”

— Scott Graham


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