Feb. 13, 2012
In the past, there has been controversy about American courts using foreign court decisions as an argument in favor of a particular decision.
But what about using jokes?
Thats exactly what the U.S. Court of Appeals for the Ninth Circuit did last week. In support of their ruling that adoption of Californias marriage amendment, Proposition 8, violated the Constitution, Judge Stephen Reinhardt, writing for the 2-1 majority in the case, consulted such eminent jurists as Shakespeare, Lincoln, Sinatra, and Marx. Groucho Marx, that is. Oh, and dont forget Monroe. Not James, the president, but Marilyn, the movie star.
These sources were cited by Judge Reinhardt to illustrate the social importance of marriage. He declared, We need consider only the many ways in which we encounter the word marriage in our daily lives and understand it, consciously or not, to convey a sense of significance. He proves the point with this passage:
Groucho Marxs one-liner, Marriage is a wonderful institution . . . but who wants to live in an institution? would lack its punch if the word marriage were replaced with the alternative phrase. So too with Shakespeares A young man married is a man thats marrd, Lincolns Marriage is neither heaven nor hell, it is simply purgatory, and Sinatras A man doesnt know what happiness is until hes married. By then its too late. . . . Had Marilyn Monroes film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie . . . .
I wonder if it never occurred to Judge Reinhardt that quoting jokes might be taken as a less-than-serious way of arguing that amending the California constitution violates the Constitution of the United States. I also wonder if it even occurred to him that the four jokes he quoted were all ones denigrating marriage. They might make a reader puzzled as to why homosexuals are so desperate to redefine the institution in order to live in it.
In any case conservatives can legitimately say that Judge Reinhardts decision was a joke. The proof is right there, in Section V.B.