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Friday, May 23, 2008

What He Said

posted by on May 23 at 10:20 AM

Ryan Blethen marks the Supreme Court of California’s historic decision legalizing same-sex marriage in that state by slapping the Washington state Supreme Court for its idiotic ruling on same-sex marriage here two years ago. From his column in today’s Seattle Times:

California is the second state to allow marriage for same-sex couples. Massachusetts’ Supreme Court was first in 2004…. Marriage has not suffered in Massachusetts since marriage equality was affirmed in 2004. In fact, the commonwealth has the lowest divorce rate in the nation.

How does that factoid fit into the man/woman marriage crowd’s screeching proclamations that if a woman is allowed to marry a woman, the good old traditional American way of life is going to be ripped apart?

The California high court’s enlightened vote makes the Washington state Supreme Court’s affirmation of a ban on same-sex marriage two years ago feel more like a throwback ruling to a time of prehistoric social norms.

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It was great to see the CA Supreme Court buck the trend of other state supreme courts where they appallingly argued that a mother and father are best for raising a child and used that as a basis for their rulings.

Posted by osudude | May 23, 2008 10:31 AM

Remember when the miscegenation laws fell?

I don't either, but it probably felt like this.

Posted by Will in Seattle | May 23, 2008 10:45 AM

Massachussets has the lowest divorce rate in the country? Wow! That's interesting. Maybe because 1) less people get married in that state, and ESPECIALLY 2) less stupid young overly idealistic fucktards are getting married. Another interesting marriage factoid about New England is that Rhode Island has the highest average age of FIRST marriage at 28. It's obvious that gay or straight, people stress the QUALITY of their relationships vs. quantiy.

3 more months in redneck/hippie land!!!

I think marriage and serious relationships should be treated more like good BDSM practices, good boundries, trust and pace for their partner, respect each others limitations, and obviously the safe words.

Posted by OR Matt | May 23, 2008 10:57 AM

But don't you see, Dan?

If the Washington State Supreme Court had ruled in favor of marriage equality, then civilization itself would have collapsed, just like itís collapsed in all of the other places that allow same sex marriage like Belgium, Canada, Massachusetts, the Netherlands, Spain and South Africa, or where they have civil unions or domestic partnerships such as Andorra, California, Connecticut, Croatia, the Czech Republic, Denmark, the District of Columbia, England, Finland, France, Germany, Greenland, Hawaii, Hungary, Iceland, Israel, Luxembourg, Maine, Mexico City, the Mexican State of Coahuila, New Jersey, New Zealand, Norway, Portugal, Sweden, Switzerland, Vermont and now of course Washington.

P.S. Someone needs to rip Barbara Madsen a new one in the 2010 candidate interviews, hint, hint...

Posted by Original Andrew | May 23, 2008 10:59 AM

Social norms... It might just matter that each state has its own constitution.

Posted by umvue | May 23, 2008 11:00 AM

Red Bushies don't care about Constitutions, just infringing on your privacy and rights.

Posted by Will in Seattle | May 23, 2008 11:23 AM

I'll betcha the divorce rate tracks pretty closely to the Catholic rate, actually.

But looka here: a couple of times a century a Blethen gets one right. Maybe this Ryan kid ain't so bad.

Posted by Fnarf | May 23, 2008 11:44 AM

@7 ... I think I would ALMOST agree with that. But even the catholics back east are putting off the family until they are more settled in life.

I went to Catholic grammar school in CT, My health/math teacher was married something like three times, and of course had at least a child with every husband. Out of my classmates, it's about 50:50 as to whose folks stuck togethor and those that didn't.

I think it's mostly people are opting to NOT get married. Cohabitate, maybe buy home, sometimes even start the family, but are really putting off tying the knot until they are really sure of what they are getting too. I guess the really great party and the empty promise of happily ever after are just not enough.

I am 27 years old, and out of my friends I went to school with (and yes catholic school) only ONE has gotten married, and unfortunately rather hastily. Yes they are very much in love, but they are also very much fucked up. Only now are the relationships my friends are in are considered for life time partners (I guess grad school, and circumstances in life have put courtship on hold for me ... but whatever ... I always wondered what Dan Savages dating advice would be for men in male dominated careers).

Posted by OR Matt | May 23, 2008 12:18 PM

Um, Umvue, you're wrong. There's nothing specifically different in the Washington constitution from the Californian one. The Washington court just took a stupid reason to ban gay marriage and decided it worked.

Posted by Dean P | May 23, 2008 1:27 PM

Maybe they thought divorce was one of those American values that they had to defend.

Posted by nabridie | May 24, 2008 5:41 AM

This comment shows a profound misunderstanding about the law and the way it works. This kind of criticism of the Washington State Supreme Court is as baseless as those who criticize the California Court for somehow being "Activist". Judges do not (or aren't supposed to) look at popular opinion, personal opinion, or social norms, but instead, the existing laws, the existing constitution, and the case law which indicates how the constitution is applied.

In their decision, the California court did just this, which makes the decision anything but activist. The court's decision was correct not because it expanded freedom, but because it faithfully applied the correct constitutionality tests to the gay marriage law they were considering.

I don't know the Washington Constitution very well, nor the relevant case law for their decision. And unless Blethen does, he would be wise to avoid making these kinds of statements, for they prove him to be as ignorant about the processes the make law in this country as those who cry "Activist Judges" at every ruling they do not personally support.

And for the record, I'm a gay man. I'm also a lawyer. And it bothers me that the court is no longer viewed as the arbiter of the law, but as a political tool. The activist judge moniker is nonsense, but the converse is true as well. And from what I read, Blathen is using a version of the "Activist Judge" slur here.

The argument he makes is not bad, it's just aimed to the wrong institution. This argument should be directed at the legislature, for they are the branch tasked with translating societal mores and norms into law.

Posted by juan | May 25, 2008 6:29 PM

Hi Juan,
I am only a law student, not a proper lawyer, but I think you are wrong. Judges *are* supposed to look at social norms/popular norms, both explicitly and implicitly. Implicitly, in the sense that they are invited to use the concept of "reasonableness" ("the man on the Clapham bus") in most tests, and explicitly, in that non-commensurability with popular standards is a basis upon which cases can be and are decided. It was certainly a factor in the UK decision reversing the "unlimited consent" doctrine in marriage, and in recent Australian decisions about recoverability of damages for mental distress. In fact, in most decisions law students are given to read, the Court makes some reference to existing social norms.

Come to think of it, isn't this also part of the rational behind the prevailing USSC (don't know the notation) behind s.8 (2) of the US Constitution - the interstate trade provision, upon which most current federal taxation powers rest?

I'm not sure I'm right - you know more about it than me - but this was certainly my strong impression.

Posted by Mem | May 27, 2008 2:48 AM

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