Mark D. White

Mark D. White

Yesterday, Judge Vaughn R. Walker overturned Proposition 8, the voter-enacted amendment to the California Constitution that declares marriage to be exclusively between a man and a woman. This case will undoubtedly move up through the court system, but for now this is undeniably a huge step.

I especially appreciated this passage in Judge Walker's decision (page 118 in the opinion linked above):

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).

This echoes what I wrote in  "Same-Sex Marriage: The Irrelevance of the Economic Approach to Law" (International Journal of Law in Context, 6/2, 2010; draft version available here), drawing from the jurisprudence of Ronald Dworkin:

If rights are in question, they should not be up for vote; a right either exists or it does not… And whether or not it does exist should be formally recognised by the part of the legal system responsible for deciding on issues of rights – the courts. To do otherwise is to invoke Mill’s "tyranny of the majority" by endorsing a system in which the majority can vote to rescind essential rights claimed by the minority. … But just as judges should not legislate or make policy, the standard legislative process cannot do justice to the principled matter of same-sex marriage, nor does it serve democratic principles to try. (p. 147)

Aside from my approval of the substance of Judge Walker's decision, I especially appreciate the way in which he made it, confirming that some rights – especially ones so important as the right to marry the person of one's choosing – are beyond popular vote.

Noentheless, the optimal solution remains that the state should withdraw from marriage entirely, leaving it a purely private matter between individuals, their community, and their faith (when appropriate), stepping in only to enforce private agreements or other aspects of the law that apply to married and non-married persons, and with no privileged (positive or negative) status accorded to marriage. Only when the state takes its finger off the scales will marriage be truly equal for all.