In a fascinating Op-ed piece in the New York Times on August 12, 2010, Linda Greenberg analyzes the decision in Perry v Schwartzenegger, the recent California appellate decision overturning Proposition 8 that outlawed same-sex marriage in California.
Greenberg has this to say about the decision:
"Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails. 'Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines' until recently, he said. 'Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.' ”
Judge Walker’s conclusion was that Proposition 8, the state constitutional amendment confining marriage to opposite-sex couples, “thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civil life.” Proposition 8 “mandates that men and women be treated differently based only on antiquated and discredited notions of gender.”
Greenberg maintains that judges and courts have had nothing, really, to do with redefining marriage. Societal changes--attitudes of people about marriage, commitment and family--have profoundly affected the institution of marriage.
You may read Greenberg's Opinionator piece "Hiding in Plain Sight" here.
The 136 page Opinion in Perry v Schwartzenegger may be read here.
Note: Linda Greenhouse, was the winner of the 1998 Pulitzer Prize. She teaches at Yale Law School and is the author of a biography of Justice Harry A. Blackmun, “Becoming Justice Blackmun.” She is also the co-author, with Reva B. Siegel, of “Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.”