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Balkinization – Grading the California same-sex marriage opinion:
The California Supreme Court’s opinion is distressingly conclusory. It combines a tortured and probably unsalvageable substantive due process analysis with a strange, ultimately barely successful equal protection argument. If it is persuasive, it is barely so. Law professors are grumpy people who care less about whether you’ve argued the right side than about whether you’ve constructed your argument competently. I would give this opinion a barely passing grade.
The court’s arguments are based on clauses of the California constitution that resemble the federal equal protection and due process clauses. But since the decision wasn’t interpreting the U.S. Constitution, it can’t be reviewed by the U.S. Supreme Court.
I liked the decision, but this close analysis looks at in a critical light, and brings some useful criticism to it (although agreeing with the final decision). The main point I drew was how much it relied on the 1948 California decision regarding inter-racial marriage.
I'm currently a graduate student of the history of law and technology at the University of California, San Diego. I also provide law and technology consulting services.
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