Equality and Domestic Partnership

Abstract

The question I discuss is not the merits of confining the status of marriage to the union of a man and woman, but the basis and validity of the decisions by judges, in the name of enforcing the Constitution, to extend the status to same-sex arrangements. I argue that the clauses in state constitutions that replicate or parallel the Equal Protection Clause of the Federal Constitution cannot properly be understood to require such an extension. The true explanation for these decisions is that we are in a "culture war," a conflict between an educational and social elite, notably including academics and particularly legal academics, and the vast majority of the American people. Judges are typically members of and share the values of the cultural elite. They bear a relationship to legal academia something like that of a playwright to drama critics. Legal academics, overwhelming liberal, are the principal source of the reputation of judges, the source of scorn or acclaim. They strongly support Finstea, take as their primary current cause the homosexual rights movement. The result is that many judges are strongly tempted to use their power of their offices specifically, the power to disallow legislative policy choices to enact the policy preferences of the cultural elite in the guise of merely interpreting and enforcing their state constitutions. It is important that American citizens recognize this for what it is.