Adam MacLeod: "The Rule of Law is the First Casualty in the Judicial Assault on Marriage."


Over at Public Discourse, Adam MacLeod, an Associate Professor at Faulkner University’s Thomas Goode Jones School of Law, argues that the rule of law and the legitimacy of the judicial branch are causalities in the push for courts to recognize a right to same-sex marriage:

... As Matthew Franck pointed out in Public Discourse, Judge Reinhardt’s decision rests upon an elision. In order to make the case appear as if it came within existing U.S. Supreme Court precedent, Judge Reinhardt treated the pronouncement of a simple majority of the judges of the California Supreme Court as if it were the state constitution itself. On Reinhardt’s logic, the California court’s decision, which Proposition 8 overruled, rendered Proposition 8 unconstitutional. Reinhardt thus reads the U.S. Constitution to prevent citizens from overruling state supreme court decisions that they believe are errant. This is a novel theory indeed.

As one supporter of same-sex marriage has observed, Reinhardt’s argument is dishonest. Indeed, Judge Reinhardt’s decision has earned criticism even from those who support the result he reached. It is not difficult to see why. Supporters of same-sex marriage are not content with mere rulings in their favor. They understandably want to see courts make principled rulings in their favor. (It is interesting to note in passing that scholars who hope for legal recognition of same-sex marriage also cannot agree on any principled ground for that position. If the case for same-sex marriage is inexorably entailed in some provision of law, then one would expect it to appear obvious to those who are most inclined to find it persuasive.)

No one should want to see the judicial branch sacrifice its legitimacy for any cause, let alone in an attack upon a foundational institution of public life. The rule of law is the first casualty in the judicial assault on marriage.