Regarding the New Jersey case--it was a bad ruling, yes. But it's not precedential as it was overturned. Bad decisions are made all the time. That's why we have appeals. The appeals process worked in this case.
This is my fault, because I'm interchangeably using the common and legal definitions of precedent. No, it's not a legal precedent, but it's a common precedent now. The New Jersey judge will not be the last judge to allow that argument.
Kennedy didn't cite any foreign law as binding. He referred to it in the course of a much larger argument. If you have a problem with Kennedy's use of foreign law in that regard, do you also have a problem with the majority opinion in Bowers v. Hardwick, and the dissenting opinion of Scalia, which both cite the long history of anti-sodomy statutes, including nineteenth century British law?
Yes, I would have, for the same reasons I oppose the use by Kennedy, had the situation occurred in the same way. However, Scalia was not part of the Bowers case, so I assume you're talking Lawrence, which overturned Bowers, and stated as follows:
The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added).
The use of a foreign case in this instance was not to create precedent or help assist in the decision in any way, but to instead describe the attitude of the Court regarding the case as Scalia saw it. Significantly different in all respects.
no subject
This is my fault, because I'm interchangeably using the common and legal definitions of precedent. No, it's not a legal precedent, but it's a common precedent now. The New Jersey judge will not be the last judge to allow that argument.
Kennedy didn't cite any foreign law as binding. He referred to it in the course of a much larger argument. If you have a problem with Kennedy's use of foreign law in that regard, do you also have a problem with the majority opinion in Bowers v. Hardwick, and the dissenting opinion of Scalia, which both cite the long history of anti-sodomy statutes, including nineteenth century British law?
Yes, I would have, for the same reasons I oppose the use by Kennedy, had the situation occurred in the same way. However, Scalia was not part of the Bowers case, so I assume you're talking Lawrence, which overturned Bowers, and stated as follows:
The use of a foreign case in this instance was not to create precedent or help assist in the decision in any way, but to instead describe the attitude of the Court regarding the case as Scalia saw it. Significantly different in all respects.