For the same reason, at least one philosopher rightly observed that "thinking in terms of Law is inevitable for man but it is the obstacle par excellence to the understanding of reality." The letter of the law is not its spirit, and as the Law is the demigod child of both, in its clumsiness it's often an ass.
We also know that a key technique of sophistry, which is entirely unconcerned with the search for truth, is using the limitations of language as a weapon when it suits its purpose. Meaning, that is to say truth, is sacrificed for victory.
In its ruling and application of a recently passed law, in the now-historic Gay Golf Case, the California Supreme Court wrote:
The Legislature has made it abundantly clear that an important goal of the Domestic Partner Act is to create substantial legal equality between domestic partners and spouses...We interpret this language to mean there shall be no discrimination in the treatment of registered domestic partners and spouses.
This in spite of another recently passed direct initiative by The People of California (with 60+% of the vote):
308.5. Only marriage between a man and a woman is valid or recognized in California.
It's indeed proper to note that the court did not address Proposition 22; it bulldozed over it. Its meaning was plain, designating marriage between men and women as a unique societal institution. This wasn't a problem for the state--they simply erected an institution of equal legal force right alongside it, decreed it equal in substance, and named it something else. It's not marriage. It's exactly the same as marriage but it's not marriage. Get it?
Look, I don't know if the court's interpretation of the legislature's intent is correct or not, or if they "overinterpreted." No matter; the court's final word is now law. I'm not even a fan of the California's initiative process, and I'm not even commenting on the moral rightness or wrongness of gay marriage.
But what I do know is it's time to dispense with our comforting fairy tale that in this nation The People are sovereign.
Sophistry rules.
Well, it's still my first fan letter on this blog, and I'll treasure it always.
ReplyDeleteSorry, Tom. I had to delete it.
ReplyDeleteOK, standard disclaimer: I am not a lawyer. But, I have looked at the California Supreme Court opinion, and it seems to me that, since the opinion is based on the court's application of the Unruh Act, and not on any considerations of California or federal constitutional law, that the legislature could reverse the situation by simply amending or rewriting the Unruh Act. Assuming such action is in fact what the voters of California want, this would be a counterpunch for the sovereignty of the people.
ReplyDelete