Tuesday, June 3, 2008

Lesbian was dissenting judge in California marriage ruling

I came across this very interesting story today. Apparently, one of the dissenting three judges in last month's historic same sex marriage ruling in California (which struck down that state's ban by a vote of 4 to 3) was none other than lesbian Judge Carol Corrigan, a Republican appointee.

This columnist, Ann Bradley, chastises Corrigan for her dissenting opinion, while this article merely chronicles Corrigan's reasoning. Both are good reads. Corrigan says she's in favour of gay marriage, but wasn't willing to use the power of the court to make it happen.

I find I agree with Bradley about Corrigan. To simply defer to majority opinion on the question of equality for long misunderstood and/or hated minorities is a bizarre position.

Here's an excerpt from Bradley's column:

"In her dissent in re Marriage Cases, self-proclaimed centrist Corrigan writes, "Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent."

But Corrigan has it wrong. Justices are not activist when they elevate constitutional freedoms based on historic wisdom and current understanding. That's their job.

Corrigan's argument eerily tracks Justice Henry Billings Brown's 1896 Plessy v. Ferguson opinion affirming segregation: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

Echoing Brown, Corrigan writes, "Requiring the same substantive legal rights is, in my view, a matter of equal protection. But this does not mean the traditional definition of marriage is unconstitutional." And further, "The people are entitled to preserve this traditional understanding in the terminology of the law, recognizing that same-sex and opposite-sex unions are different. What they are not entitled to do is treat them differently under the law."

In his majority opinion, Chief Justice Ronald George accurately points out that language influences treatment.

"(T)he state's assignment of a different name to the couple's relationship poses a risk that the different name itself will have the effect of denying such couple's relationship the equal respect and dignity to which the couple is constitutionally entitled."

As it stands, it looks like an initiative that would again outlaw gay marriage in California has qualified for the November ballot.


Jason Hickman said...

Let me throw this question out there: Should Judge Corrigan's sexuality should have any relevance to her judicial opinion, whether or not one agress with it?

Matt Guerin said...

Good question, Jason. I'd say the only relevance to her judicial opinion on this one case is to illustrate how she was able to keep her emotions and personal opinions on this issue separate from her decision-making process. It actually gives her position - that the courts shouldn't make this kind of change - more weight as she is clearly in favour of same sex marriage.

Jason Hickman said...

I guess that's my point, Matt - while we usually concede that judges bring their own experiences, biases, etc with them when they're appointed the bench to some extent, we also expect (hope?) that judges can put aside their own predispositions and judge the case on the merits.

I just found it bothersome that the newspaper that you cited felt the need to even reference Judge Corrigan's sexuality, as I would have been a bit offended if that journo were to say, in effect, "I wouldn't have expected a woman," or "a member of [ethnic group]," to rule in a certain way.

Deference between the courts and the legislatures is always a tricky balance, especially when what could be called "minority rights" are concerned, and/or when the courts are interpreting constitutions that were, in fact, drafted by legislators. Reasonable people can differ on where the balance should be struck, for sure.