Citations in judicial opinions are about the only way legal academics know that their scholarship is being considered by someone other than other legal academics and that it might even be having some real-world effect. The use of secondary sources in last week’s California marriage decision will delight some of the authors and dismay others. A few examples:
Carlos Ball: Professor Ball – soon to be at Rutgers-Newark – is one of the most interesting and thoughtful defenders of gay equality among legal academics today. He is cited for the idea that the fundamental right to marry has a positive dimension; that is, the state must provide some formal legal recognition to family relationships. Op. at 65 n. 43. I have my doubts about this view, since rights are not generally thought to impose positive obligations on the state. I also don’t think this conclusion was necessary to the court’s holding. But Ball makes a good case for it in a 2004 Minnesota Law Review article and the California court agrees with him.
David Blankenhorn: Blankenhorn’s very good 2007 book arguing against gay marriage, The Future of Marriage, is cited for the idea that marriage has historically been about procreation. Id. at 73. The court notes, however, that the constitutional right to marry has never been limited to couples who can procreate. Id. at 73-74.
Jesse Choper: The former Berkeley law dean is cited for the idea that courts should defend individual rights no matter the political reaction. Id. at 110. It is the only oblique reference I can find in the opinion to the possibility that California voters will repeal gay marriage at the ballot box in November.
Mary Ann Glendon: Professor Glendon of Harvard, a conservative Catholic who’s now the US Ambassador to the Vatican, opposes gay marriage. But in reaching its conclusion that gay marriage is good for society, the court cites her for the proposition that legal obligations in marriage help relieve society of social-welfare burdens it would otherwise have. Id. at 58 n. 37.
John Rawls: Yes, Rawls! The court refutes an ill-considered argument by amicus curiae the American Center for Law & Justice, which opposes gay marriage, that Rawls believed reproduction is essential to family function. Id. at. 78-79 n. 51. Rawls had some nice things to say about gay people and didn’t think any particular family form was critical. There are many philosophers one could cite in opposition to gay marriage, but the justice-as-fairness guru is among the least persuasive for that position.
Cass Sunstein: What’s an opinion these days on almost any subject without a citation to one of my favorite professors from law school? The majority cites his Cardozo article on the right to marry, if only to distinguish his view about the nature and scope of the federal constitutional right from its view about the state constitutional right. Id. at 63 n. 42.
Lynn Wardle: Professor Wardle of BYU Law School has been among the most prolific scholars in the country opposed to gay marriage. Moreover, his writing has been influential and is frequently cited by courts to justify, among other things, Florida’s prohibition on adoption by homosexuals. Wardle’s work is cited twice in the majority opinion. Along with David Blankenhorn and Maggie Gallagher (the court misspells her name as “Gallaher”), Wardle is cited as arguing that same-sex marriage severs the link between procreation and child-rearing and sends the message that it is not important to have biological mothers and fathers raising their children. Id. at 77. The courts says this argument “lacks merit” because allowing gay couples to marry does not diminish the incentive that straight couples have to marry and does not reduce their legal responsibilities to their own children. Further, same-sex marriage extends to the children being raised by gay couples the legally protected familial structure it provides to children raised by opposite-sex married couples. Id. at 78. To Wardle’s probable dismay, the court relies on his work on the international status of marriage for the idea that many nations provide special protections for families and marriage – a protection the court (but not Wardle) thinks should extend to gay families. Id. at 63 n. 41.
Congratulations (and some condolences) to these authors!
Related Posts (on one page):
- Sexual orientation and heightened scrutiny in the California marriage decision:
- Secondary sources in the California marriage decision:
- The (limited?) potential of the California marriage decision:
That's not, IMO, as strong a claim as noting that US law, unlike law in other countries, did not generally accepted infertility as a reason for divorce when states required fault for divorce. (I believe that is true; feel free to contradict me.)
After all, the burden on privacy for couples to demonstrate their ability to procreate is greater than that imposed by asking the members of the couple to be different sexes. "You can't marry if I can tell that you can't have kids by just looking at you, but I can't force you to take a scientific fertility test before you marry" is not a policy without a rational basis, IMO.
There is a constitutional right to marry?
on the federal level it is in the first first amendment. admittedly it is a little hard to read being entirely in the micro-print of the word 'association', but you don't need shadow of penumbra glasses to see it.
on the california level, it is no doubt contained in the right to pursue happiness, safety or privacy (jokes aside one of those 3 goals must apply to any marriage).
Also, now that same-sex families are recognized and approved by the state, we can expect to see more children, not less, being raised in intentionally motherless or fatherless families. Cruel and unusual, imho.