A reader writes:

You mention in a post today, "Haste on Marriage?" that you were conflicted about the California ruling, that perhaps the court should have  exercised judicial restraint.  On the other hand, you point out that the same could have been said 60 years ago about Perez.  On the other hand--in your best Tevye impression--you say it will be argued that Perez was based on racial discrimination which has a clear jurisprudential lineage.

Those who would argue the latter are possibly forgetting when Perez was decided.  Perez was decided in 1948 before Brown v. Board at a time when "separate but equal" was still the law of the land.  There  was jurisprudential lineage, but it was all in the opposite direction. Plessy v. Ferguson was good law at the time and stood for the proposition that it was constitutional to enforce racial segregation. Pace v. Alabama was also good law at the time.  That was a case that said a law giving far harsher penalties for interracial fornication was constitutional since the law applied equally to both races.  As the dissent in Perez noted every single court in the country that had looked at the issue of anti-miscegenation laws had declared them valid (many of the opinions going to say that they were in fact a good thing).  The idea of "strict scrutiny" for racial discrimination did exist but was very new being established by the Supreme Court of the US only four years earlier in Korematsu v. US (dealing with internment of Japanese-Americans).  But even that only applied to laws which curtailed the rights of a single race.

  The unanimous view until this time was that of Pace which said these laws didn't single out a race and so were valid.  In fact the 10th circuit had decided four years earlier (coincidentally the same day as Korematsu came down) in Stevens v. US that Oklahoma's laws banning interracial marriage did not violate the 14th amendment.  And unlike in this week's case, the court in Perez was applying Federal law and thus was bound by US Supreme Court decisions including Plessy and Pace (although not bound by the 10th circuit decision).

The key to California's decision in both 1948 and 2008 was to look more closely at an issue that had often before been rejected out of hand. In 1948 the court said that yes "separate but equal"  was the law but looked at from the point of view of the individual there was no equal substitute for one's chosen marital partner.  In 2008 they said yes the "right to marry" had been stated before with the idea of a marriage being the union of a man and a woman, but if one looked at the reasons for why marriage was a fundamental right it was clear that they would apply equally to unions of the same sex.  In both cases it was the careful examination that led to what I believe was the correct decision on the law.  Even if you believe one or both cases were incorrectly decided, though, when it comes down to fundamental rights and minorities that have not always been treated justly, it is no virtue for a court to ignore the issue in deference to the wishes of a majority.  They should strive instead strive in good faith to apply the constitution regardless of the popularity of the decision. Those that disagree should argue on against the reasoning used and the legal principles applied and not rely on overstated cries of judicial activism.

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