“A Painful Process of Waiting”: The New York, Washington, New Jersey, and Maryland Dissenting Justices Understand That “Same-Sex Marriage” is Not What Same-Sex Couples Are Seeking
Barbara J. Cox, 45 Cal. W. L. Rev. 139 (2008)
(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)
The first section of this essay discusses how the constant use of the term, “same-sex marriage,” by advocates and opponents alike, seems to have convinced each majority or plurality that the plaintiffs were not seeking recognition of their fundamental right to marry, but instead were seeking a new fundamental right to “same-sex marriage.” By framing the question so narrowly, rather than asking whether the fundamental right to marry is violated by refusing to allow individuals in same-sex couples to marry, the courts err when analyzing these bans. Since they do not believe that “a right to same-sex marriage” can be seen as fundamental, they deny each individual in a same-sex couple the opportunity to marry the one person he or she chooses to marry.
The second section looks closely at the primary dissenting opinions from New York, Washington, and New Jersey, focusing on why those justices concluded that the plaintiffs’ constitutional right to marry was violated. In particular, this section focuses on why the dissenting justices of each court rejected the rationales espoused by the states, and accepted by the majorities or pluralities, in support of each state’s refusal to allow individuals in same-sex couples to marry while allowing those in opposite-sex couples to do so. While the dissenting justices concluded that the statutes should be subject to strict scrutiny for violating the plaintiffs’ constitutional rights, each also determined that the states’ rationales for continuing the ban would not survive even rational scrutiny.
Section three discusses how the effort to distinguish opposite-sex couples from same-sex couples, so that the former may marry while the latter may not, has denigrated the institution of marriage. Opponents of “same-sex marriage” claim that marriage as an institution needs to be “defended” from the harm that would be caused by allowing individuals in same-sex couples to marry. Instead, it is the proponents for continuing the ban who describe marriage in such limited ways as to rob it of much of its possibility. Their willingness to retain marriage for only opposite-sex couples by accepting any conceivable rationale to do so underscores the harm caused by continuing discrimination when faced with reasonable, fair-minded challenges. Ultimately, it is the dissenting justices’ opinions that best protect marriage and it is how the dissenting justices understand marriage that best explains why individuals in same-sex couples seek the right to choose it for ourselves.
