Realistically, this is going to SCOTUS, so the only real benefit in celebrating or looking at these rulings is whether or not there's any judicial novelty in the arguments that could filter up to SCOTUS. I read the dissent for that reason:
- Dissenting judge claims same-sex marriage would be a new right, not just a new interpretation of an existing right. The analysis where the judge attempts to show how these are different is fairly poor; for example, he notes that the distinction comes from a constitutional test in Gluckberg which asks whether the right is "deeply rooted in the nation's history". He notes that in Loving v. Virginia (which struck down miscegenation laws), it was not a new right, because the couple wanted to enter into an opposite-sex marriage, which was of course deeply rooted in the nation's history. This seems like weak analysis, because it doesn't demonstrate how we would know, before Loving, that the right deeply rooted in the nation's history was in fact opposite-sex marriage and not same-race marriage. The idea that mixed-race marriage was deeply rooted in a way that same-sex marriage was not seems dubious. Moreover, it seems to me like rights can cascade just fine--ie a right to speech exists, a right to specific forms of speech exists, and a right to specific forms of speech across specific mediums exist--so there definitely needs to be more analysis if the judge wants to claim that same-sex marriage is not itself a subset of marriage. He holds that race is unrelated to marriage, but that gender is related to marriage, but to do so requires some sort of concrete definition of marriage stripped to its barest components, which he does not provide.
- His distinction appears to be drawn across procreative capacity, which I think has been dispensed with by the majority in just about all of these cases nicely. If procreation were the purpose of marriage, then restrictions on marriage would be based around ability (and indeed intent) to procreate, not proxies for ability to procreate; and if they were based around proxies for ability to procreate, we'd disallow marriages between senior citizens because age is as powerful of a limiting factor on pregnancy as gender is.
- He does briefly say that allowing same-sex marriage as a matter of human dignity (IE that everyone ought to be able to choose their partner) raises issues for polygamous relationships. This of course is not comparing homosexuality to polygamy, but rather saying something about the definition of marriage. I am not impressed by this argument for two reasons. First, because even if one applies strict scrutiny for polygamy bans, presumably the state's interest in banning polygamy would not be "procreation" but rather protection of the abuse of minors and captivity against their will. Second, if the only reason why we're banning polygamy is because "eww gross" then it ought not be banned. If there emerges a civil rights movement built around polygamy, with test cases that are unambiguously loving couples not in an abusive or lopsided relationship, otherwise integrated into society... I'm not really sure how we could sustain polygamy bans. Maybe on the technicality that the actual mechanical elements of the division of assets and distribution of benefits can't be readily adjusted to n-person relationships instead of 2-person relationships (although here is a case where corporate personhood provides a very easy model... but anyway). So I would basically say that you can't just wave your hands and say "But if we grant people dignity, even gross people will want dignity". Yep. As well they should. Bring it on.
- Given his prior arguments, he feels that marriage should be subject to rational basis scrutiny rather than strict scrutiny. Strict scrutiny basically means the government really needs to prove the need for the law, rational basis means they just need to prove that the law has some remotely believable purpose. The majorities in SSM cases over the last 2 years have been pretty split; some have held that SSM bans meet rational basis but not strict scrutiny, others have held that SSM bans meet neither. The rational basis is apparently procreation. Setting aside whether that is a rational basis, under rational basis review extending benefits to one group and not another is considered fine, even if extending the benefits to the latter group doesn't undermine the former.
- Basically, it seems like once the judge accepted rational basis review, and accepted that procreation was a rational basis, the law was obviously going to be upheld.
- His treatment of the equal protection claim is brief, and he basically holds that sexual orientation would be the basis of discrimination, not gender, and protection for sexual orientation is not a heightened scrutiny class.
So I guess all in all it's a pretty standard dissent. Nothing novel here.
