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February 3, 2011

The End of Marriage?

In “The Judicial Imposition of Same-Sex Marriage: The Boundaries of Judicial Legitimacy and Legitimate Redefinition of Marriage,” recently published in the Washburn Law Journal, Professor Lynn Wardle argues that judicial decisions invalidating same-sex marriage prohibitions by the United States District Court in Perry v. Schwarzenegger, the Iowa Supreme Court in Varnum v. Brien, and the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health

raises serious questions about the nature and scope of legitimate judicial authority to alter the state (and social) institution of marriage, about the nature of marriage itself, and about the legitimacy of same-sex marriage created by or as a result of an illegitimate judicial decree.

He condemns these decisions and expresses deep concern about whether we as a nation will survive this onslaught of what he considers unmitigated judicial activism.

Chances are, we will.

As was true of the civil rights movement in the 1950s and 1960s, when it comes to the issue of same-sex marriage, judges are not acting alone. Brown v. Board of Education may have lit the way, but it took Congressional action to effectuate the principle of equality the Supreme Court articulated in that case. Today there are more American jurisdictions that recognize same-sex marriage than Professor Wardle might have imagined ten years ago, not all of them as a result of a judicial decree.

Though, as the courts in California, Iowa and Connecticut have held, equal protection does not permit the perpetuation of discrimination for arbitrary reasons, the real shift in thinking about marriage will not be accomplished through judicial decisions. Wardle is right when he contends that the issue of same-sex marriage ultimately will be decided by the American people.

What will they decide? It may not be what the opponents of marriage equality think. Consider the announcement this week that Barbara Bush, daughter of President George W. Bush, has endorsed legalization of same-sex marriage. She is just the latest child of a prominent Republican to do so.

This is further evidence of a wider generational split: surveys show that young people are not nearly as anxious about same-sex marriage as their parents and grandparents. They are growing up in a world in which it is unremarkable to have openly gay friends, relatives, neighbors, and colleagues. These young people will one day be a political majority. And when they are, courts will have moved on to adjudicating new civil rights issues.

Lawrence Friedman

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