The California Supreme Court just ruled that it is unconstitutional, under state law, to discriminate between same-sex couples in the matter of marriage.
I wrote about the issue a long time ago – ‘Why I Support Gay Marriage, and Why I Will Never Be Angry At Those Who Do Not.’
Personally, I’d rather it had been resolved in the Legislature. But it’s step toward resolving it…
The press release from the state Judicial Council:
San Francisco – The California Supreme Court today held that the California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying. (In re Marriage Cases, S147999.)
The court concluded that permitting opposite-sex couples to marry while affording same-sex couples access only to the novel and less-recognized status of domestic partnership improperly infringes a same-sex couple’s constitutional rights to marry and to the equal protection of the laws as guaranteed by the California Constitution.
The decision directs state officials who supervise the enforcement of the state’s marriage laws to ensure that local officials comply with the court’s ruling and permit same-sex couples to marry. The decision becomes final in 30 days unless that period is extended by court order.
The 121-page majority opinion, which sets forth the decision of the court, was authored by Chief Justice Ronald George, and was signed by Justices Joyce Kennard, Kathryn Werdegar, and Carlos Moreno; Justice Kennard also wrote a separate concurring opinion. Justice Marvin Baxter authored a concurring and dissenting opinion that was signed by Justice Ming Chin, and Justice Carol Corrigan wrote a separate concurring and dissenting opinion. Both concurring and dissenting opinions disagree with the majority’s conclusion that the marriage statutes are unconstitutional. All opinions are available online at www.courtinfo.ca.gov.
Today’s ruling resolves several lawsuits that were filed in 2004 by the City and County of San Francisco and a number of same-sex couples after the California Supreme Court determined that, in the absence of a judicial determination that statutes limiting marriage to opposite-sex couples are unconstitutional, San Francisco officials lacked authority to issue marriage licenses to same-sex couples.
In April 2005, Judge Richard Kramer of the San Francisco Superior Court issued a decision holding that the current California marriage statutes contravene the California Constitution insofar as they limit marriage to opposite-sex couples. The State of California and the other parties defending the marriage statutes appealed from the trial court decision, which was stayed pending appeal.
In October 2006, the Court of Appeal, in a two-to-one decision, reversed the trial court, concluding that the marriage statutes are constitutionally valid. The Supreme Court then granted review. The parties and numerous amici curiae filed extensive briefs. The Supreme Court heard oral argument on March 3, 2008, and issued its decision today, reversing the judgment of the Court of Appeal, which had upheld the marriage statutes.
The California Supreme Court majority opinion notes at the outset that the court held in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, that San Francisco officials had acted unlawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes, by limiting marriage to opposite-sex couples, are unconstitutional. The opinion explains, however, that the Lockyer decision emphasized that the question of the constitutional validity of the marriage statutes was not before the court at that time, and that its decision in that case did not reflect any view on that substantive constitutional issue. The In re marriage Cases proceeding squarely presents the constitutional question that was not addressed in Lockyer.
Majority Opinion Addresses Distinct Legal issues
In considering that constitutional question, the majority opinion discusses a number of distinct legal issues.
First, the opinion analyzes the scope of Family Code section 308.5, the statutory provision enacted by the voters’ approval of Proposition 22 at the March 2000 election. The parties challenging the marriage statutes asserted that the limitation on marriage embodied in section 308.5 was intended, and should be interpreted, to apply only to marriages performed outside of California – leaving the Legislature free to authorize the marriage of same-sex couples within California. The majority opinion rejects the challengers’ contention on this point, concluding that the provisions of section 308.5 properly must be interpreted to impose a limitation on marriages performed in California as well as on out-of-state marriages.
Second, the opinion addresses the nature and scope of the constitutional right to marry under the California Constitution. The opinion observes that although, as an historical matter, civil marriage and the rights associated with it have been afforded in California only to opposite-sex couples, the California Supreme Court’s landmark 1948 decision in Perez v. Sharp, 32 Cal.2d 711 – which found that the California statutory provisions prohibiting interracial marriage were inconsistent with the fundamental constitutional right to marry, even though those statutes had existed since the founding of the state – demonstrates that “history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee.”
Upon reviewing the numerous past California decisions that examine the underlying bases and significance of the constitutional right to marry, the opinion explains that the core substantive rights embodied in the right to marry “include, most fundamentally, the opportunity of an individual to establish – with the person with whom the individual has chosen to share his or her life – an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” The opinion then observes that “in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.”
The opinion concludes that “in view of the substance and significance of the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”
Furthermore, although the opinion acknowledges that the recent comprehensive domestic partnership legislation enacted in California affords same-sex couples most of the substantive elements embodied in the constitutional right to marry, the opinion concludes that by assigning a different name for the family relationship of same-sex couples while preserving the historic and honored designation of “marriage” only for opposite-sex couples, the California statutes threaten to deny the family relationship of same-sex couples dignity and respect equal to that accorded the family relationship of opposite-sex couples and thereby impinge upon a same-sex couple’s right to marry as protected by the California Constitution.
Third, the majority opinion addresses the equal protection issue raised by the case. In considering whether the assignment of a different name for the official family relationship of same-sex couples as contrasted with the name for the family relationship of opposite-sex couples violates the state equal protection clause, the opinion initially examines whether the different treatment between opposite-sex and same-sex couples should be evaluated under the deferential “rational basis” test that is applied to ordinary statutory classifications, or under the more exacting “strict scrutiny” standard that is applicable when a statute’s differential treatment rests upon a “suspect classification” or impinges upon a fundamental right.
In addressing this point, the opinion first rejects the contention of those challenging the marriage statutes that in treating same-sex couples differently from opposite-sex couples, the marriage statutes embody an instance of discrimination on the basis of sex or gender and are subject to strict scrutiny on that basis. Nonetheless, the opinion concludes that the strict scrutiny standard is applicable in this case (1) because the statutes discriminate on the basis of sexual orientation, a characteristic the majority determines represents – like gender, race, and religion – a constitutionally suspect basis upon which to impose differential treatment, and (2) because the different statutory treatment impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
Finally, in applying the strict scrutiny standard, the majority opinion determines the challenged statutes do not satisfy that standard, because the state interest underlying the marriage statutes’ differential treatment of opposite-sex and same-sex couples – the interest in retaining the traditional and well-established definition of marriage – cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.
The opinion explains that the exclusion of same-sex couples from the designation of marriage clearly is not necessary to protect all of the rights and benefits currently enjoyed by married opposite-sex couples: permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage inasmuch as same-sex couples who choose to marry will be subject to the same obligations and duties that are currently imposed on married opposite-sex couples. The opinion further observes that retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples, and may perpetuate a more general premise that gay individuals and same-sex couples are in some respects “second-class citizens” who may be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, the opinion finds that retaining the traditional definition of marriage cannot be considered a compelling state interest.
Consequently, the majority opinion holds that the marriage statutes are unconstitutional.
The opinion also explains: “[Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”
concurring Opinion by Justice Kennard
In her separate concurring opinion, Justice Kennard explains how the majority’s decision in this case is consistent with its decision in the earlier Lockyer matter. The concurring opinion also reiterates the position that Justice Kennard set forth in her separate opinion in Lockyer, in which she concluded that the court in that case should not have declared void all of the marriages of same-sex couples that had been performed in San Francisco prior to this court’s issuance of a stay, but rather should have reserved the question of the validity of those marriages until after the constitutionality of the California marriage statutes was authoritatively resolved through judicial proceedings.
At the same time, the concurring opinion recognizes that the decision in Lockyer finally and conclusively invalidated those earlier marriages of same-sex couples and that the decision in the current case does not alter the voiding of those marriages. Finally, the concurring opinion emphasizes why, in Justice Kennard’s view, “the constitutionality of the marriage laws’ exclusion of same-sex couples is an issue particularly appropriate for decision by this court, rather than a social or political issue inappropriate for judicial consideration,” explaining that “[the architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.”
concurring and Dissenting Opinion by Justice Baxter
In his concurring and dissenting opinion, joined by Justice Chin, Justice Baxter explains that although he agrees with several of the majority’s conclusions, he disagrees with the majority’s holding that the California Constitution invalidates the statutes – including an initiative measure recently adopted by the voters – that define marriage as an opposite sex union. In reaching this decision, Justice Baxter contends, the majority “violates the separation of powers, and thereby commits profound error.” Citing the legislative progress that gays and lesbians have already achieved in California, Justice Baxter urges that the future definition of marriage should also be decided by the democratic process, not by the courts.
Justice Baxter criticizes the majority’s mode of analysis in reaching its constitutional conclusion, stating that the majority “relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute.” Emphasizing that “there is no deeply rooted tradition of same-sex marriage, in the nation or in this state,” Justice Baxter concludes that there is no constitutional right to same-sex marriage “because marriage is, as it always has been, the right of a woman and an unrelated man to marry each other.”
The concurring and dissenting opinion also disagrees with the majority’s equal protection analysis in a number of respects, concluding (1) that “same-sex couples and opposite-sex couples are not similarly situated with respect to the valid purposes of” the current marriage statutes, (2) that the state, by assigning different labels to same-sex and opposite-sex legal unions, does not discriminate directly on the basis of sexual orientation, and (3) that, in any event, sexual orientation is not properly considered a suspect classification because “gays and lesbians in this state currently lack the insularity, unpopularity, and consequent political vulnerability upon which the notion of suspect classifications is founded.”
Concluding that the normal rational basis test – rather than strict scrutiny – is applicable to evaluating the validity, under the California equal protection guarantee, of the distinction drawn between opposite-sex and same-sex couples by the current marriage and domestic partnership statutes, Justice Baxter concludes that there are ample grounds for upholding the assignment of a name other than marriage to same-sex couples.
concurring and Dissenting Opinion by Justice Corrigan
In her concurring and dissenting opinion, Justice Corrigan states at the outset that although “[in my view, Californians should allow our gay and lesbian neighbors to call their unions marriage,” “a majority of Californians hold a different view, and have explicitly said so by their vote.”
Justice Corrigan believes the court’s ruling exceeds the bounds of judicial authority: “This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not.” In explaining her position, Justice Corrigan notes that, under California law, domestic partners have virtually all of the substantive legal benefits and privileges available to traditional spouses, and states, “I believe the Constitution requires this as a matter of equal protection.”
Her separate opinion goes on to explain, however, that “the single question in this case is whether domestic partners have a constitutional right to the name of ‘marriage,’ ” and on that point Justice Corrigan disagrees with the majority’s conclusion, finding that the majority improperly denigrates domestic partnership by describing it “as ‘only a novel alternative designation . . . constituting significantly unequal treatment’ and ‘a mark of second-class citizenship.’ “
Indicating that her view “on the question of terminology rests on both an equal protection analysis and a recognition of the appropriate scope of judicial authority,” Justice Corrigan concludes first that, as a matter of equal protection, “while plaintiffs are in the same position as married couples when it comes to the substantive legal rights and responsibilities of family members, they are not in the same position with regard to the title of ‘marriage.’ ” With respect to the question of the proper scope of judicial authority, Justice Corrigan finds that the majority fails to exercise appropriate judicial restraint, maintaining that “[instead of presuming the validity of the statutes defining marriage and establishing domestic partnership, in effect the majority presumes them to be constitutionally invalid by characterizing domestic partnership as a ‘mark of second-class citizenship.’ ” Her concurring and dissenting opinion concludes: “We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root. If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”
Lynn Holton
Public Information Officer
Judicial Council of California – Administrative Office of the Courts
AL:
One of the things emphasized in the brief talking head analysis that I saw on CNN was that the court had ruled that same sex marriage was a “natural right.” I don’t see any language in the text above to that effect. They call it a “constitutional right,” but don’t refer to it as a natural right. I wonder what Robby George would think of the latter position?
Also, the talking head panel suggested that this is immune from a SCOTUS ruling because it refers to the state constitution. However, if a constitutional measure were passed by referendum or by the legislature specifically forbidding same sex marriage then the state court could only maintain same-sex marriage on the basis of a “natural” right… thereby actually over-ruling its own constitution. And if that’s the case, I think it might become a Supreme Court issue. (I’m sure the 9th would uphold the state court’s ruling, however. It’s the most liberal circuit in the land, by far.)
Of course, I’m not a constitutional or natural law scholar… but I could ask a few that I know. My impression is that very few of them would uphold the idea that same sex marriage is a natural right, but it’d be interesting to hear their reasoning.
Now everyone has the opportunity to experience the joy of “equitable distribution”.
Be careful what you wish for.
From the (roughly half) of the decision I’ve read so far, it’s not that they’re saying same-sex marriage is a natural right. It’s that they’re saying that marriage, as a way of forming a family with people you love, is a natural right.
They specifically deny that the question is whether there is a constitutional right to gay marriage (just as, they say, they denied that the earlier question was whether there was a constitutional right to interracial marriage).
Aphrael #3:
Huh?
Granted, this is a press release from the State Judicial Council, but they say at lest six times that the opinion upholds a “constitutional right.” For instance:
Are you saying that they address it by denying it, and instead argue that it’s a natural right? Why would the Judicial Council so badly misrepresent the ruling? Could you quote something that talks about a natural right?
Again, by specifically ruling that the ban is unconstitutional aren’t they saying that it’s a constitutional right? Specifically, regarding family relationships they say:
I don’t see anything about a natural right there. Rather, they’re saying that (by inference) a compelling state interest would be sufficient to deny the right. By definition, the state can’t abrogate a natural right whether it has a compelling interest or not.
Again, perhaps you could provide a quote?
Well, here are the words of the opinion itself… and I can see why one might believe they’re talking about a natural right:
That seems to equate same-sex marriage with liberty and autonomy, but the reasoning as to why this is so would probably not pass muster with the Supremes, or with most natural law scholars. (Are they prepared to limit marriage to people who are attracted to one another sexually, or can I marry anyone I like (excepting my siblings or first cousins)? Moreover, they appear to specifically leave the door open to a constitutional amendment, which is not a statutory initiative. But we’ll see. I’m guessing there will be a constitutional amendment within short order, which will necessitate another ruling with tighter reasoning.
Obama will have a running mate in California, at least – a gay marriage ballot initiative.
Curse you, Karl Rove, you magnificent bastard! How do you do it?
Yeah, here’s a quote, from pp 51-53
Plaintiffs challenge the Court of Appeal’s characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs’ position. In _Perez v Sharp_ [citation omitted] – this court’s 1948 decision holding that the California statutory provisisions prohibiting interracial marriage were unconstitutional – the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as “a right to interracial marriage” and did not dismiss the plaintiffs’ constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the _Perez_ decision focused on the _substance_ of the constitutional right at issue — that is, the importance to an individual of the freedom “to join in marriage _with the person of one’s choice_” — in determining whether the statute impinged upon the plaintiffs’ fundamental constitutional right. …
For this reason, in evaluaitng the constitutional issue before us, we consider it appropriate to direct oru focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of “same-sex marriage.”
Yes that was my thought as well Glen. The politics of this force Dems to confront Gay Marriage. And polygamy.
What I found interesting was that a. Jerry Brown tanked the brief before the California Supremes in favor of Gay Marriage, and b. the Supremes noted that there is a fundamental “human right” to be married regardless of form, coupled with “no compelling state interest” to define marriage in any way.
Prediction: Muslims will be demanding formal recognition of polygamy based on this ruling very soon, along with the FLDS people. The media will of course suppress coverage of that (messy facts would upset the masses). But it will happen, along with welfare payments FOR EACH WIFE in the marriage. Just as in Britain.
Gay Marriage of course comes with polygamy. You can’t have “just” gay marriage any more than being “a little bit” pregnant. The politics of this is enormous.
You have the Supremes in California saying that the family formation which worked for 2,000 years is now kaput. Gay marriage, polygamy, the few polyamorists, etc. are all on the same plane. Marriage is defined as pretty much whatever you want, to the point of meaningless words.
But … Californian pols will have to deal with polygamists getting formal recognition and welfare. There is no other way to construe this ruling, and as a practical matter if you allow Gay Marriage you allow polygamy. And, underage or coerced women in polygamous marriages. If there is no “compelling state interest” to regulate the forms of marriage then you have to allow child marriage as well.
Demosophist: this decision interprets the state constitution and is not subject to review by the federal supreme court.
That said, a constitutional amendment to ban gay marriage outright in california will qualify for the ballot in November.
And then we can have the *political* battle.
We might even win.
I think Jim is pretty much right, that the logic of this case applies not just to ‘gay’ marriage, but to ALL alternative consensual forms of marriage. That said, of course, courts intent on reaching one conclusion and not another all the time manage to not extend to extend the logic of a decision any further than they’re comfortable with. So polygamy will have to wait for another day. Probably a few years hence, when ‘gay’ marriage has gotten well established, and the next increment won’t seem so radical.
A point I’m curious about: Suppose the citizens of California DO amend their constitution to explicitly overturn this ruling: Think the courts will let them? Or will they pull a Colorado, and rule the very effort to change the constitution unconstitutional?
And if they did, does the “republican form of government” guarantee extend to state judicial efforts to deny the people the power to amend their own constitution?
“And if they did, does the “republican form of government” guarantee extend to state judicial efforts to deny the people the power to amend their own constitution?”
Yes. Just as the SCOTUS and the Federal government has erroded States Rights when it suits them.
I can support the idea of “gay marriage”, what I can’t support is how the court reached its decision.
I find these judicial developments disturbing.
First, we had the Massachusetts court decision that required the state to recognize gay marriage, relying partly on Massachusetts anti-discrimination laws. Result? Movements to extend anti-discrimination laws to homosexuals in other states stagnate.
Now, California courts have outlawed domestic partnership laws that give all the substantive rights of marriage, but stigmatize homosexuals. Predicted result? Setback in other states considering civil union laws.
Meanwhile, more states will be pushing for constitutional amendments, reducing the middle ground.
I do believe that the Constitutional Amendment proposed to ban Gay Marriage already has 1 million plus signatures. I think for the most part, people don’t mind domestic partnerships, and granting same as marriage rights to same-sex couples. I think what they object to is the courts forcing it on them, especially when you have a large majority opposed to it in the first place.
IIRC exit polls from the 2004 Presidential election showed a majority of Republicans favor domestic partnership laws. Momentum on these things though often goes with the agitated minority.
“And if they did, does the “republican form of government” guarantee extend to state judicial efforts to deny the people the power to amend their own constitution?”
Yes. Just as the SCOTUS and the Federal government has erroded States Rights when it suits them.
Marriage is a contract as far as the government is concerned. I fail to understand how you can restrict that contract by gender. You restrict a contract to 2 human beings (power of attorney) but i dont know of any other contract restricted by gender. Seems like a pretty blatent equal protection issue to me.
Conservatives are supposed to keep the government small and mechanical. I dont see why they would champion the government defining religious sacraments.
bq CA Supreme Court Decides On Gay Marriage
Boffo for them. But what have the CA _citizens_ decided on the subject?
Mark Buehner is absolutely right. I think opponents of gay marriage have this vision of policemen coming in and making their minister (priest, rabbi) officiate gay weddings in total violation of their religion’s beliefs. I don’t think anyone holds with that, or with cancelling other rules that religions want to make, such as only marrying people within the church, or only marrying couples biologically capable of conception. The right of couples to start a family at the Registrar’s Office with rights like survivorship privileges and joint child custody should be a non-starter, and pretty soon will be.
Hmmm. That last sentence came out backwards, but my point should be clear.
@18- Who cares what the citizens think when their desires involve giving themselves special privileges that they then deny to others due to their religion? This isn’t a democracy, it’s a constitutional republic–the whole idea is to protect minorities from the prejudices of the majority. Any citizen who thinks they should be allowed to afford themselves over 1000 special government privileges which they deny to others based on a religious distinction doesn’t deserve the title of citizen.
Like Andrew said, there’s no force of jackbooted thugs barging into Southern Baptist churches and forcing the ministers to perform gay marriages. If religious people don’t want the government administering their religious institution of ‘marriage’ in a non-discriminatory fashion, perhaps they should quit trying to use the government to prop up their religious institutions.
_The right of couples to start a family at the Registrar’s Office with rights like survivorship privileges and joint child custody should be a non-starter, and pretty soon will be._
As far as I can tell, California law authorized that, its just that it was called something other than marriage, which was deemed akin to a hate crime. I see the point, but marriage is also a religious institution and if all a political compromise needs is to call it something else, the courts should butt out.
Planter:
There is likewise no force of jackbooted thugs breaking up gay wedding ceremonies, is there? Have you ever heard of a gay wedding getting busted, even in Mississippi?
There will be a force of jackbooted lawyers on the loose, filing lawsuits – even if unwinnable – against the state, churches, and employers.
And they’ll sound something like that.
I’m sympathetic to PD Shaw’s point,
but suggest the implementation could go the other way around. The State has domestic partnerships for all, and religions have marriages according to their own lights.
bq. Who cares what the citizens think
Indeed.
bq. there’s no force of jackbooted thugs barging into Southern Baptist churches and forcing the ministers to perform gay marriages
Lack of jackboots noted, but what about when they start getting “hauled in front of human rights commissions”:http://conservablogs.com/velvethammer/2008/02/07/christian-photographer-hauled-before-human-rights-commision/ for refusing to conduct a commercial activity, which is what marriage becomes if you completely divorce (pun intended) the concept from any religious background? Surely religious practitioners should be free from harassment of this sort?
Oh wait, apparently you don’t think so:
bq. Any citizen who thinks they should be allowed to afford themselves over 1000 special government privileges which they deny to others based on a religious distinction
…has probably read _all_ of the 1st Amendment. You know, the one that protects freedom of religion and bans government from “prohibiting the free exercise thereof”.
I humbly submit you have a warped POV of American freedoms, systems of government in general, and the Constitution in particular. “I award you no points”:http://www.youtube.com/watch?v=PVJXVJfY90s , and may God have mercy on your soul.
Glen #6:
The majority of justices who ruled were Republican appointments, so there you have it.
Aphrael #9:
If it’s interpreted as a “human” or “natural” right then it’s difficult to see how its merely an interpretation of the state constitution, unless California uniquely guarantees natural rights not guaranteed elsewhere, because somehow Californians are… different. (I won’t speculate on whether they’re more, or less, “natural.”) Yes, I imagine that there’ll be a constitutional amendment initiative, and it will be passed. The point is that if the ruling guarantees a natural right then the constitutional amendment would be ruled unconstitutional on those grounds, and that would conceivably launch the issue up the pipe.
AJL _The State has domestic partnerships for all, and religions have marriages according to their own lights._
No disagreement here.
Andrew # 24 & PD #27:
Domestic partnerships are usually touted as the fall back position, and strike many people as a compromise. However, the evidence from Scandinavia suggests that domestic partnership may be even more corrosive to the institution of marriage and family than outright marriages. That sort of makes sense, if you consider that domestic partnership might be considered a competitor to marriage. And by corrosive, all I mean is that in contributes to family disruption by “diluting the franchise.” However, even Charles Murray thinks the evidence from Scandinavia may not be conclusive, and therefore isn’t strongly opposed to either domestic partnership or same-sex marriage.
There are even those who argue that same-sex marriage might strengthen the franchise, but I find that hard to believe… at least in the case of males. I suspect that a fairly large percentage of male marriages will be “open” just as many of the relationship are. The opposite is probably true for lesbians.
The bottom line for me is that I can’t conceive of marriage as a natural right, without allowing expansion of that right in pretty unnatural and destructive ways. Of course, it need not be a natural right in order to be a valid entitlement… but that would rest on the magnanimity of the electorate or their representatives.
Surely, we can’t have that…
@25- The idea that Christians should be able to award themselves over 1000 special privileges from the government according to their own religious definition of marriage is precisely the sort of establishment of religion that the First Amendment is supposed to protect us from. I don’t expect special privileges based on my religious beliefs, why should you get them?
_”You know, the one that protects freedom of religion and bans government from ‘prohibiting the free exercise thereof’.”_
You are free to establish your own religious beliefs and rituals as you choose. I can hardly be said–at least not if you are being honest–to have claimed anything to the contrary. What I did say is that you have attempted to take your own religious beliefs and establish them as the law of the land, and discriminate under color of law based upon your religious beliefs. So, yes, when citizens think they should be able to establish their religion through the tyranny of the majority, who cares what they think. I don’t care if the majority of the country favors ‘common sense’ gun control either–their opinion doesn’t trump other people’s rights.
Religious people should have the freedom to exercise their beliefs. No church should be forced to perform rituals that they do not recognize. Period. A photographer should be free to turn down business they don’t want to undertake. There are plenty of other photographers in the sea.
If you remove religious definitions from the government’s provision of special rights pursuant to marriage, it becomes civil–not commercial. If you want your marriage to be sacred, go to a priest. If you want visitation rights to your spouse in the hospital, go to the marriage license bureau.
So yeah, feel free to withhold your points.
Both of my grandmothers were very religious, pious Catholics. My parents were married in the Catholic church. When they divorced, neither of my grandmothers (nor the Catholic Church) recognized the divorce or my father’s subsequent remarriage as legitimate; however, the state recognized both. This situation perfectly parallels the way same-sex marriages ought to work with regard to the religious objections of some. If you are opposed to gay marriages, don’t marry someone of the same sex. The courts are not butting in, they are preventing the state from butting in on behalf of religious objections.
So traditional marriage represents the tyranny of the majority over a minority? I think you just coined the perfect excuse for commitment-phobic single men when quizzed by their girlfriends. But I’m afraid your comment requires more fisking than witty responses:
bq. What I did say is that you have attempted to take your own religious beliefs and establish them as the law of the land, and discriminate under color of law based upon your religious beliefs.
Funny, I don’t recall stumping for the creation of the First National Church of the United States. What I _did_ say, in response to AJL’s claim of religious hysteria, was that if you try to remove all religious connotation from marriage eventually you’re left with a mere commercial contract… at which point religious freedoms actually do come under fire.
bq. So, yes, when citizens think they should be able to establish their religion through the tyranny of the majority, who cares what they think.
Quit getting hung up on religion. Marriage is a societal institution, and as such a society gets a say in what makes it up. Otherwise we have _real_ tyranny, not the kind you attribute to persons disinterested in expanding the Western definition of marriage beyond what it’s been for the last thousand years or so.
There’s a key point you’re whistling past here, which is that the only interest government has in regulating marriage at all is because of the various government-sponsored benefits attached with the status. You can argue whether these were enacted to encourage marriages (as defined when the benefits were enacted), or whether married people outvoted single people and voted themselves entitlements, or whatever. Regardless of the historic rationale, the point is there are real, tangible perks associated with marriage now; but while that may provide a “fairness” argument in favor of extending them to same-sex couples, it does not provide an argument that the traditional definition of marriage is some sort of imposed value dictated by a religion.
Thought experiment: remove all tax and legal benefits associated with marriages (but keep the ease-of-transition mechanisms like forms for name change, etc). Ban the government from defining marriage at all, and let individual communities do it via popular vote. Is it still tyranny if 75% of the population rejects _your_ definition of the institution?
bq. Religious people should have the freedom to exercise their beliefs. No church should be forced to perform rituals that they do not recognize. Period. A photographer should be free to turn down business they don’t want to undertake. There are plenty of other photographers in the sea.
Agreed, agreed, and agreed–but wait, the government “already decided”:http://www.volokh.com/posts/1208284041.shtml that *the photographer was not free to exercise her religion* in that case. It’s just too bad that your argument clashes with your conclusions when taken to their logical end.
Planter:
Which part of the institution of marriage is an imposition of religious belief? That it’s between a man and a woman? That it excludes siblings? That it’s between only two people at a time? That it excludes the rest of God’s creatures?
I’d also argue that society has a compelling interest in regulating marriage contracts because those practices have an important impact on the viability of families, especially children younger than three. Family dissolution has had an enormous impact not merely on socialization, willingness to be law abiding, etc.. but it even impacts IQ development.
BTW, heterosexual monogamy developed not only because it provided a better institutional environment for child rearing but because polygamy tended to advantage wealthy elites in the gene pool, and also created other significant social conflicts. For instance, the prevalence of pederasty in the YFV cult is partly a matter of the social conflicts resulting from competition for females. Something like it develops almost everywhere polygamy is practiced to any great extent…
Planter:
Where is this government “provision of special rights pursuant to marriage”? Where is that written?
How would “religious definitions” (What religious definitions?) make marriage commercial rather than civil?
Explain all of this, and illustrate with examples, please.
Starting at the end:
@33: Glen, I didn’t assert that marriage would be commercial without a religious dimension–that is Unbeliever’s language. I said it would be civil–the same way a driver’s license is civil (it is a state privilege, not a religious one). You’ll have to ask Unbeliever what he meant by ‘commercial.’
The government’s “provision of special rights pursuant to marriage” is simply the 1000+ rights which married couples are afforded vis-a-vis each other. I believe they were enumerated in a GAO report from a few years back. Single people don’t get those rights, and at least in states with ‘defense of marriage’ acts or amendments, gay people cannot even create a contract between partners to approximate those rights. None of those rights are inherent in ‘marriage’–they are there because the government says so.
@32 (and also continuing with Glen @33):
Demosophist, at the moment at least, the imposition of religious belief–and in America specifically a Christian religious belief–is that ‘marriage is between a man and woman.’ ‘All the rest of God’s creatures’ are easy to exclude as they are incapable of providing the basic requirements of a contract, of which marriage is a subset.
If preserving the viability of families is the government purpose behind all of these benefits, why are they afforded to childless couples as well as those with children? And why are they not afforded to gay couples who are raising children together (which is already perfectly legal, whether the gay couples’ children be adopted or a biological child)?
Marriage benefits are an outgrowth of a statist culture. The nuclear family, with only parents raising children, is a recent historical development, and special privileges for married couples that are not allowed to singles or gay couples are an even more recent development. What federal benefits were there for a spouse in 1850? Veteran’s pension maybe? Arguments from historical circumstance overlook how families (if not the nature of marriage from necessity to ‘love’ pairs) have changed over time.
Government may indeed have a compelling interest in assisting families provide stable environments for children, but it requires an affirmative argument that a gay couple cannot provide such a stable environment–or that they are already not rearing children in such environments. And if the government’s special privileges do, in fact, have an effect of assisting families, then any study claiming to show that children of gay couples are disadvantaged is itself tainted because it cannot adjust for the gay couples’ lack of identical state assistance in raising their kids. (That’s just a pre-emptive sentence in case someone is planning on quoting such and such study.)
@31: Forcing your personal moral values on others hardly requires the establishment of a formal church. If you believe that is the sole purpose of the First Amendment then that explains a lot, but I suspect you are being deliberately obtuse.
You continue to want to allow the majority to tell other people how they are required to live. Exactly where is the line between the right of ‘society’ to tell you the parameters of your own marriage based on their interest in a ‘societal institution’? Do they get to require you to have children? What about gender roles–if society says it’s a man’s job to do the finances can they legally prohibit your wife from looking at the checkbook? By your argument, as long as they’ve got a majority (or 75% supermajority), they can.
The difference between your position and mine is that you believe that the majority of people should be allowed to grant benefits or restrict other peoples’ behavior based on their own arbitrary whims. I believe that individuals and minorities should be free to live their lives and associate with whom they choose without interference from the state, and that if the state wants to hand out a benefit it has to do so based on nondiscriminatory criteria–precisely to preserve the right of unpopular individuals or minorities to obtain that benefit just like the majority is able to obtain it. Hence the photographer’s dilemma is actually the logical conclusion of *your* position–that state power should be only minimally bridled–not *mine*.
The point is that if the ruling guarantees a natural right then the constitutional amendment would be ruled unconstitutional on those grounds
The argument in the decision is that the California constitution protects an individual right to marry. It is *not* that the federal constitution does; the US Supreme Court cannot overturn the state court’s interpretation of its own constitution.
If the voters amend the constitution, there’s no basis for a state suit to overturn the amendment.
You’re probably right that there’ll be a federal suit against the constitutional amendment.
That said, the current federal supreme court is not particularly inclined to read natural rights into the federal constitution.
Well we can all rest easy knowing we live in a natiion where majority rule is defined as the whims of five senile old fools, or in California’s case four loons. So if two queers have the right to marry who can deny a father the right to marry his son? Or his daughter!
The founding fathers must be spinning in their graves.