Decisions such as the Iowa Supreme Court’s recent announcement that the state’s constitution requires the state to make same-sex monogamous marriage legal pose a practical dilemma for those of us who support gay marriage, but oppose the more egregious varieties of legal hocus-pocus.
And make no mistake—the court’s decision is a bunch of question-begging nonsense, poorly disguised by a smokescreen of law talk.
Campos expalins that
the legal concept of equal treatment requires treating things that are sufficiently alike in the same way—but that concept tells you nothing about whether the things you’re analyzing (such as opposite-sex and same-sex marriage) are sufficiently alike.
It should be unnecessary to point out that the question of whether same-sex unions are sufficiently like opposite-sex marriages to merit equal treatment is a political and moral question, which lacks any specifically legal content whatsoever.
For example, legal reasoning doesn’t help us decide if polygamous marriages are sufficiently like monogamous marriages to merit equal legal treatment.
He continues:
The point is that there’s no reason to think that the justice’s opinions regarding such matters are any more accurate or valuable than anyone else’s (such as, for example, those of ordinary Iowans).
Again, this kind of judicial policymaking lacks any kind of genuine legal content. The question the court is answering is a legal one only in the trivial sense that it’s a subject of legislation. Whether gay marriage ought to be legal is a political question, regarding which lawyers in general and judges in particular have no special insight.
[Hat-tip, Fitz, in our comment section.]
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