March 13, 2004

Right on Law, Wrong on Policy

Steven Den Beste just put up a conventional analysis of the relevant legal issues facing California's courts on the upcoming gay marriage cases.

We deeply disagree on policy (and I won't go over that again) but he's got it mostly right on the legal issue. I'm much more pessimistic about the California courts though. This should have been put down on straightforward legal grounds by now and it hasn't. It is quite possible that there will be an outbreak of penumbras and tortured legal reasoning that will lead to California being unable to keep anything illegal. As a libertarian, that theoretically pleases me. As a practical man, I'm horrified at the idea that courts are likely to start running willy nilly through the legal code throwing out random chunks without any serious consideration as to the political compromises that led to the current legal balance.

Unfortunately, I think that Bill Quick is likely going to be right on at least some of the State Court majorities and though SDB's legal reasoning is sound, it doesn't much matter when you have a black robed legislature.

Posted by TMLutas at March 13, 2004 11:23 PM