The Magazine

California, Too!

Another judicial setback for same-sex marriage advocates.

Oct 23, 2006, Vol. 12, No. 06 • By DAVID M. WAGNER
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Then there are the miscegenation cases. They held that "marriage" means a self-defined yet state-recognized relationship with anyone at all, right? Well, no, they didn't--but we can easily generalize to reach that conclusion. There are enough dicta there to create the effect, and where the dicta fall short, there are lots of law review articles to cite. (That's how we govern ourselves, right? See what the law profs say in their learned journals?)

In fairness to Judge Kline, generality inflation has not been unknown in the U.S. Supreme Court. Griswold did not make Roe legally necessary, just culturally predictable: Roe took the Griswold right (privacy of a married couple) and raised it to a higher level of generality ("broad enough to include . . ."). And so it has frequently gone in the Court's post-1965 "privacy" cases.

So Judge Kline has not made up a novel methodology: His dissent uses a tried-and-true tactic for putting judges at the forefront of (what they take to be) social progress. But more and more state courts, it would appear, are concluding that, in a democracy, that is not where judges normally belong.

David M. Wagner teaches constitutional law at Regent University and blogs at ninomania.blogspot.com.