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June 13, 2008

Two Problems with Robert Miller's Statement

Thanks to Rob Vischer for linking us (here) to Robert Miller's statement (here), which I just read.

The fundamental problem with Professor Miller's statement is that it does not support the constitutional amendment it purports to support.  The constitutional amendment the statement purports to support would prevent the Pennsylvania legislature from recognizing--by extending the benefit of law to--same-sex unions, should the legislature want to do so, whether now or ten years from now.  Yet, Miller's statement is an argument in support of the proposition that a political majority, and not the courts, should decide whether to recognize same-sex unions.  The constitutional amendment Miller's statement purports to support would prevent a political majority in Pennsylvania, should it want to do so, say, ten years from now, from recognizing same-sex unions.  The constitutional amendment Miller's statement actually supports is different from the one it purports to support.  The constitutional amendment the statement actually supports is one that prevents the courts from requiring Pennsylvania to recognize same-sex unions.  Such an amendment would state simply that the Pennsylvania constitution shall not be construed by any court to require Pennsylvania to recognize same-sex unions.

Here is another problem with Miller's statement:  In the course of his statement, Miller says that a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions "would for all practical purposes have roughly the same effect as . . . passing the amendment proposed in S.B. 1250."  That claim is plainly false.  The proposed amendment would prevent the Pennsylvania legislature from recognizing--should it want to do so, say, ten years from now--same-sex unions.  By contrast, a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions would not prevent the  Pennsylvania legislature, now or later, from recognizing same-sex unions should it want to do so.   

Posted by Michael Perry on June 13, 2008 at 01:56 AM in Perry, Michael | Permalink

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