"Same-sex couples have a constitutional right to marry, the California Supreme Court ruled  Thursday." Story here.

Previously: "I was reminded of the bass-ackwardness of the debate over gay marriage."

Previously: "I like to think that I love my family almost as much as opponents of gay marriage love their families."

Comments

[justcorbly]

No doubt this will stir up the usual hysteria from the usual suspects.

Much, probably most, of the opposition to same-sex marriage seems to me to stem from the same dark place that allowed many Americans to claim slavery, then Jim Crow, and then just general bigotry, were, and are, in accordance with God's will. (I'll ignore the economic motivation for slavery, which doesn't seem to apply in this instance.)

Just as some people who argued for Biblical support of slavery believed they were sincere, so do many of those who oppose gay marriage believe that opposition is rooted in sincere religious beliefs. For others, of course, it's simply a matter of pretending to adopt a religious point of view to provide cover for a profound bigotry.

Whether motivated by simple bigotry or by sincere Biblical interpretation, the result is the same.

So, the test for this country is whether or not it is willing to sacrifice the Constitution and its democratic principles to sustain religious opinions that cannot, in practice, be distinguished from bigotry? Are we ready to subordinate and subvert the Constitution, abandoning democracy, at the behest of a singular Biblical interpretation?

[Spag]

California subordinated its own Constitution today with this result. I'm sorry, but the idea of marriage being between a man and a woman isn't a "Biblical" principle. I think it's pretty universal regardless of one's religion, so that stereotypical notion about what motivates people to oppose gay marriage won't fly.

The fact is that there is no right to same sex marriage in the California Constitution. There never has been. If there was, it would have been figured out a long time ago. This "right" was created today out of nothing. Marriage is regulated in California by statute, not the Constitution and the people overwhelmingly voted last year to reaffirm the statute. The Court wasn't satisfied with that, so they created a Constitutional right and then tried to claim it has been there all along.

If gay marriage was so rooted in tradition as to be a fundamental right, why did the people reject it last year? The conclusion that same sex marriage is a fundamental right and the equal protection arguments are ridiculous in light of precedent and the facts. What the people vote for, the liberal Court taketh away.

-from one of the usual suspects to another.

[Roch101]

"The fact is that there is no right to same sex marriage in the California Constitution." -- Spag

I haven't read it. Is there a right to equal application of California law?

[Roch101]

Why, yes there is:

"A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens."

[justcorbly]

>>"The fact is that there is no right to same sex marriage in the California Constitution. "

I believe if you look closely you'll see that the California constitution does not prohibit it. The court, to simplify, ruled that the sate constitution secures a right to marry to all, and that the state has no compelling interest in banning same-sex marriages.

Spag, replace the langauge about "gay marriage' with language about "slavery" and your argument could have been made -- and was made, ad nauseum -- by many of similar political bent not too long ago in our history. Why should your antipathy to the rights of people to marry be considered in a different light than antipathy to Americans with African DNA? What is it about both bigotries that drove, and drives, so many to violate this naion's fundamental principles?

>>"What the people vote for, the liberal Court taketh away."

The California legislature has voted twice to grant these rights. All but one member of that "liberal Court" were appointed by Republican governors.

>>"...the idea of marriage being between a man and a woman isn't a "Biblical" principle. I think it's pretty universal regardless of one's religion..."

Indeed, and if this debate was happening in another culture, I'd have cited another religious text. My point would remain the same. But, we are in the U.S., and the most virulent opposition comes from people claiming Biblical sanction, and those who seek to manipulate them for political and financial gain.

[justcorbly]

And I learn that justices of the California Supreme Court are appointed by the governor to serve specific terms. Subsequently, they must be confirmed by the voters to retain their positions on the court. All seven justices have been confirmed by the California electorate, by at least 69 percent.

Here we have a seven-member court, six appointed by Republicans, all confirmed in their positions in wide margins by the voters, making a ruling that, in effect, stands by decisions that the democratically elected California legislature has twice made.

So, what's all that about unelected liberal judges running riot over the people?

[winstongator]

The opinion of the court - for those interested in the arguments presented.

[Jim Capo]

It used to be called "holy" matrimony. Nonetheless, I think the best thing pro-traditional family types can do is to stop running to the state to have their divorces certified.

[Spag]

Roch, the privileges and immunities clause is not an absolute guarantee of equal protection and doesn't even apply here. You still have a long way to go before you can get away with cutting and pasting and saying "see, that's what the law says". It's never that simple.

Read the dissent. They actually spend far more time with the law than the majority does. I suspect this decision will be strongly criticized from all legal corners including those who support gay marriage for its faulty rationale.

[Dave Dobson]

Sam, you're criticizing the legal thinking, the statutory language, and Roch's apparently selective constitutional quotation. All of those things sound like a smokescreen put up to obscure a fundamental view that gays are icky and don't deserve the same rights as others.

I may have this wrong, though. In the interest of clarifying whether this is an academic legal issue:

Would you agree that gay and lesbian couples ought to have the right to marry, and that their marriages should have the same status, socially and legally, that straight marriages do? If so, then your discussion of the legal merits of the case might be interesting; our society needs to evolve to handle those whose rights we've ignored to date, and part of that evolution is legal. If not, then I don't much care what legal contortions you choose to go through, because you're just wrong.

A right that is "discovered," by whatever means, is not necessarily invalid. We had to discover that slavery was evil, that women should have the vote, and that separate did not mean equal.

[Spag]

Dave, personally, my answer is "no", but this isn't about my personal opinions.

Further you are completely wrong about "legal contortions". That is what the Court did yesterday. Unless you can show me where there is a fundamental right to same sex marriage in the California constitution or where gay people are denied the right to marry that straight people don't have, you simply do not know what you are talking about.

There is a fundamental right to marry because marriage is deeply rooted in out culture and history. There is not fundamental right to same sex marriage any more than there is incestuous marriages, bigamous marriages, or polygamy because such things are not "deeply rooted" in our culture and history. You obviously do not know the legal test for whether a right is fundamental.

Further, everyone has the same right to marry a person of the opposite sex, so nobody is being denied equal protection. If you want to claim otherwise, the law is not on your side and you must also apply the same standard to incestuous, bigamous and polygamist marriages.

Please don't lecture me on Constitutional law regarding these subjects. I assure you that I know a whole lot more about this than you do. I usually don't play this kind of card with people on legal matters, but I will also not let you sit there and accuse me of engaging in legal contortions when you simply do not know the established law in these areas and therefore are unqualified to comment on the applicability of my legal analysis. If you claim otherwise, please provide the case law to support your arguments.

Perhaps you should address your posts to Ed instead of me because every time I post, a bunch of people respond to what I write instead of Ed's initial post and then I get accused of trolling or being long winded or hijacking a thread when I respond.

You people can't have it both ways- wanting a debate from an opposing view and then complaining that those who engage in the debate are hijacking the thread. You also can't have it both ways by arguing that we need to stick with responding to Ed's post while countless people spend time instead responding to me- usually the same people who complain that I am going off topic.

[James]

I can't make the case that governments should have any role in marriage whatsoever. None. It is a blurring of lines that seems fundamentally unwise.

Now regarding contractual relationships between people, sure. That's an enforcement function, which is fair game. But in contracts, the gender identities and sexuality of those entering the contracts should be irrelevant. Age is different. There's ample precedent for protecting the interests of minors.

Let's get government out of the marriage business completely.

[Roch101]

"There is no fundamental right to same sex marriage any more than there is incestuous marriages, bigamous marriages, or interracial marriages because such things are not "deeply rooted" in our culture and history.... oh,wait. Never mind." -- NotSpag

[Anthony]

Sam,

"Further, everyone has the same right to marry a person of the opposite sex, so nobody is being denied equal protection."

How is that any different than saying, "Further, everyone has the same right to marry a person of the same race, so nobody is being denied equal protection."?

If you think this was decided wrong, it seems you would need to think Loving v. Virginia was decided wrong as well. As Roch pointed out, there certainly wasn't any deeply rooted cultural reason to allow interracial marriages.

[winstongator]

Sam, Dave should not have to convince you with his opinion, the opinion allowing gay marriage that is of importance is the opinion of the 4 justices of the CA court. While rather lengthy, > 100pages, it stands on ConLaw knowledge far in excess of anyone commenting on this post.

Did the Supreme Court discover a right in Loving v. VA? It applied the 14th amendment nearly 100 years after that amendment was ratified. Did the change in law affirm a deeply rooted right? Was there any constitutional change between Plessy & Brown?

For the 2000 vote in CA, the vote was 4.6M for the measure (against gay marriage) and 2.9M against. The vote was in June. In the 2000 Prez election, 4.6M went for Bush and 5.9M for Gore. There are 27M residents of CA over the age of 18, even if 1/3 were non-citizens or otherwise ineligible to vote, the 4.6M would only represent 25% of potential voters, far from an overwhelming majority. I think had that vote been in Nov, many who voted for Gore would have backed it, and if another measure gets on the ballot this Nov, the numbers will look much different. This seems to be an issue where many people are ambivalent because it doesn't really affect them, or someone close to them, and the number of people directly affected - those gays that would want to marry - is a very small percentage. It seems harder to mobilize voters for gay marriage than to mobilize those against.

The actual issue decided was 'to determine whether the difference in the official names of the relationships violates the California constitution.' Can one legal union be called marriage for one group and the same legal union be called domestic partnership. The whole naming issue is important to many people, my dad included, but I dont see how it really matters what you call it.

[justcorbly]

The government ought to treat every pairing of two individuals as a civil union and leave the sanctification of marriage to be performed by religious bodies or other insitutions for those who want it.

Marriage is seen by many as a religious event. When the government is in the business of licensing marriage it inevitably becomes involved in deciding who can and cannot take part in that religious event.

Why is it acceptable for government to decide who can marry while we do not permit government to decide who can be baptized, take communion, attend a seder, or break a Ramadan fast?

I'd prefer an arrangment that sees government recognize and accept a contract between two members of a civil union that outlines their financial and other obligations to each other and provides the basis for any continuing tax treatment, child care, etc. (Although I'd prefer seeing the elimination of tax breaks for couples.)

If couples also want a marriage service -- religious or otherwise -- they can have that, too. But, those cermonies would carry no legal weight.

[Spag]

Roch, read the case law. You do not know what you are talking about.

"First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition". Washington v. Glucksburg, 521 U.S. 702 (1997)(citing legal precedent going back to 1934).

Same sex marriage is not deeply rooted in our history or tradition. If you try to expand that to refer to marriage in general, then you must necessarily expand it to incest, bigamy and polygamy because you are redefining marriage as no longer being between a man and a woman, which is the tradition that IS deeply rooted in our history and tradition.

[Spag]

JC, I actually agree with much of what you are saying about the government role. But I don't think we should risk the separation of powers under the law as it currently stands to reach a particular result. The idea that "in the meantime, we'll simply amend the Constitution by judicial fiat" is extremely dangerous. We have an amendment process for a reason.

[justcorbly]

In fact, the CA court ruled that if the state allows opposite-sex couple to "marry", then same-sex couples must be treated the same. If CA chooses to recognize civil unions for legal purposes and to allow churchs and other organizations to define and recognize marriages for their purposes, then the state would meet the requirements of the court's ruling. All couples would receive equal treatment from the state and the state would not attempt to define marriage for religious purposes.

[Dave Dobson]

Sam -

I did not mean to question your breadth of legal knowledge, or your ability to offer legal interpretation of the cases, both of which far exceed mine. I have often deferred to you on this blog when it comes to matters of law (although I don't see the same courtesy offered me when we discuss global warming).

My comment on "legal contortions" was rather meant to indicate the tendency many have to hide behind complicated legal arguments when the real motivation is elsewhere. There are bad laws and bad legal decisions, and this decision may well be legally flawed; I'm in no position to judge it on the legal merits. However, the principle on which it is based is the protection and validation of basic civil and human rights in a population that has been denied them. In this case, those rights are paramount. I don't care if the guarantee of those rights happens through the courts, through the legislature, or through amendment to the Constitution. I also don't care what happens in a referendum; the fundamental rights of minorities are not subject to majority rule.

My guess was, you really don't like the idea of gay marriage. I am curious as to why, and the only thing you're giving me is narrow, cryptic legal reasoning. That's why I asked that you dispense with the legal contortions (perhaps distractions would have been a better word) and tell me really why you don't like it.

P.S. Equating gay marriage with incest is pretty reprehensible. You can do better.

[justcorbly]

To be picky, that would be the California constitution that was ravaged by judicial fiat, not the federal Constitution.

One problem with a Constitutional amendment on this issue is that if it contains the word "marriage" it inevitably prolongs the ill-advised involvement of government in defining a religious ceremony.

[Sven]

Same sex marriage is not deeply rooted in our history or tradition.

Neither is miscegenation.

[Spag]

Loving did NOT change the deeply rooted idea of marriage as being between a man and a woman. The Court simply held that the right could not be denied on the basis of racial differences. This is completely different from what the California court did yesterday, which was to essentially redefine what the fundamental right to marriage is and in the process bastardize the constitutional standard along the way. Is anyone seriously arguing that same sex marriage is deeply rooted in our history and traditions? When the court speaks of the fundamental right to marriage whether it be in Loving or any other case (except this one) they are referring to it being between a man and a woman- that is the part that is deeply rooted and explains why we don't allow bigamy, polygamy etc, because those forms of marriage are not deeply rooted so as to be a fundamental right.

It's real easy to try and compare anti-miscegenation laws to gay marriage, but in reality the legal analysis is quite different.

Dave, it scares me when you write things like "I don't care if the guarantee of those rights happens through the courts, through the legislature, or through amendment to the Constitution" because you are saying that the rule of law and the system of checks and balances can be and should be ignored. Who decides those rights? The people or the courts? The court is there to say what the right is, not what it should be, but the rights themselves come from the people in the form of a Constitution and the powers that it vests. There is no argument that a Constitutional amendment is the final word, and that comes from the people, not the Courts. Would you have such an amendment be ignored to suit your views? How is that not a tyranny?

[Sven]

Loving did NOT change the deeply rooted idea of marriage as being between a man and a woman.

Of course it didn't. It changed the deeply rooted, traditional idea of marriage as being between members of the same "race."

[winstongator]

Did the dissenting opinions, or the AG argue that CA's domestic partnership law was unconstitutional, or otherwise invalid?

That law is what specifically gives 'marriage-like' rights to same-sex couples. The CA court ruled that if you're giving people the same rights defined by the state, you can't just call it something different. I don't think they would have ruled that way had there not been a domestic partnership law on the books. As for revising the definition of marriage, many people take marriage to be 'till death do us part', while others do not look at it like that. Throughout time & geography, polygamy has been widely accepted.

Sam, is your opposition limited to granting marriage licenses, or are you opposed to the CA domestic partnership law? Or would you be less opposed if a law extending marriage had been written & passed by the CA legislature.

[winstongator]

From the dissenting opinion: "It is important to be clear. Under California law, domestic partners have 'virtually all of the same substantive legal benefits and privileges' available to traditional spouses. I believe the Constitution requires this as a matter of equal protection." [Corrigan]

[Spag]

I might be opposed if it passed the legislature, but nobody approves of all legislation. That said, if the legislature passed the law then I have no legal argument to oppose it. My problem is this Court declaring a Constitutional guarantee of such a right when there clearly isn't one. The legislature regulates marriage, not the Courts.

Do you really think it is for the Courts to decide whether something should be labeled "marriage" or not? Further, do you really think the opinion was based on that distinction and if so, why was it necessary to declare same sex marriage a fundamental right or claim an equal protection violation to do so?

The naming issue was a red herring of no legal significance.

I am really curious as to how this opinion will be viewed by some liberal jurists, because I suspect even those sympathetic to gay marriage will view this reasoning as an overreach.

[Anthony]

Sam,

Maybe I missed it, but I don't think you answered my question. You said:

"Further, everyone has the same right to marry a person of the opposite sex, so nobody is being denied equal protection."

If that's a valid argument in favor of denying homosexual couples the right to marry, then why wasn't this statement:

"Further, everyone has the same right to marry a person of the same race, so nobody is being denied equal protection."

... a valid argument against denying interracial couples the right to marry?

[Spag]

Because, Anthony, for one thing, what you cite was never the law in the first place.

Second, you are conflating two separate standards, the fundamental right to marry with equal protection rights. The equal protection argument as it applies to race is based on racial discrimination in practicing that right to marriage- it does not alter the fundamental right itself. A person who was denied the fundamental right to marry (which means a man and a woman only for purposes of being a fundamental right) because or race was the victim of an equal protection violation.

A better way to put it is that gay people of all colors have the same fundamental right to marry as straight people of all colors as well as interracial marriages.

The ban on interracial marriages violated equal protection because it only prevented white people from marrying blacks. They could marry anyone but black people and vice versa. Again, you state a law that wasn't ever on the books. The real issue is when you say "everyone has the right to marry a person of the same race (true today, true then), but cannot marry anyone of a different race (that did apply equally on some level to everyone).

Suffice it to say the right to marriage to someone of the opposite sex is fundamental, therefore it cannot be abridged on the basis of race, which by itself also violates equal protection when it only bans certain interracial marriages. That is basically the holding of Loving and does not apply to the California case and gay marriage because there is no fundamental right to same sex marriage. There is no equal protection violation because nobody is being denied access to the SAME right based on race or any other criteria.

[Sven]

In other words, gay people have a right to marry white and black straight people so what's all the frickin' fuss about.

[winstongator]

"That said, if the legislature passed the law then I have no legal argument to oppose it." The CA legislature has passed domestic partnership laws. Also, isn't the concept of judicial review, or opposing a law because it violates either the US or a state constitution a way to oppose a law?

The whole argument was about naming. Reading the majority opinion clearly states that.

What is the role of the courts, if not to answer appeals of this type, and in that process potentially change policy. I do not see the change in policy, however, when all that has changed is the name of a document.

[justcorbly]

Winston, it is the unique role of the courts to review and rule on the constitutionality of the law, whether that law comes from a legislature of from a direct vote of the people. When we hear arguments that a court has overturned the will of the people as expressed in a referendum or some such event, bear in mind that the will of the people, even a majority of the people, can run counter to the Constitution.

Also, the CA case was not merely about naming conventions. Involvement in a marriage brings with it a range of legal and economic benefits and obligations. For many people, it also brings a religious blessing. Therefore, this issue would be much less cluttered if government's role in marriage was eliminated. Or, offer all those benefits to all people who enter into a contracted relationship.

In essence, I'm arguing that government shoud only issue civil union licenses, not marriage licenses; that all legal rights and obligations currently assumed upon marriage be eliminated and transferred to civil unions; and that the performances of marriage be constrained to religious and other similar organization.

That should satisfy those who oppose gay marriage on religious grounds because it would give religious organizations the exclusive right to decide who they will and will not marry. The state has no legitimate role in that. Those marriages would bestow whatever religious benefits and obligations the adherents believed in, but would bestow no legal or economic benefits or obligations.

One effect of this would be to expose the remaining opponents of gay couples as simply that: People who don't want gay people to have the rights and obligations of straight people because they are gay.

[Ed Cone]

JC, the second link in my post goes to the point about weddings vs civil unions.

People seem more exercised about the prospect of gay marriage than gay civil unions...but gay people can have church weddings right here in North Carolina, yet they are denied civil unions.

[juscorbly]

You are prescient before your time, Ed, or, at least, mine.

[Spag]

Ed, that is because the law doesn't prevent a church from marrying anyone they choose except where prohibited by law. The State of NC does not recognize gay marriage even when a church, synagogue, mosque, Tom Cruise, does.

Your analogy is similar to obtaining a degree from an unaccredited college. It's just a piece of paper that nobody is going to recognize.

Regarding civil unions, what would be the limits of such a thing? That is the problem as I see it. You could enter into a civil union with anyone, including a relative or your best friend.

These problems are all caused by too much government in people's lives, pure and simple. The rationale behind civil unions is economics which is different than the deeply rooted tradition of marriage, hence it is something less that is created for economic reasons to get the government benefits that are otherwise only available to married persons. Thus, if it is about benefits and my best buddy doesn't have insurance, etc, can I enter into a civil union with him while still being married to my wife?

[Ed Cone]

Right, the religious ceremony doesn't involve the state. It's still of great value to the participants, who have had their union blessed by their house of worship.

The irony is that the religious ceremony seems to be the most controversial aspect of the whole debate, with the word "marriage" not far behind, while the idea of legal benefits from civil unions seems less controversial -- yet gay couples can have church weddings and not legal rights.

People get married all the time for economic reasons and other non-religious, not-romantic causes. The history of marriage is deeply bound up in property rights -- our modern, Western view of marriage is in many ways a recent thing.

[drfranklives]

It amuses me when opponents fall back on the "well then you have to allow polygamy" argument while at the same time asserting that their idea of marriage is "deeply rooted" in Judeo-Christian culture.

Correct me if I am wrong, but didn't some of those folks in the Old Testament / Torah have more than one wife? Isn't that part of the original order that Joseph Smith thought he was restoring when he created LDS?

My argument is not in favor of polygamy. It's to say that that particular argument against same-sex marriages seems a bit ignorant.

[Spag]

John, who invoked "Judeo-Christian" culture? Marriage between a man and a woman is deeply rooted in nearly all religious cultures.

Polygamy was never deeply rooted in American culture anymore than same sex marriage has been. Maybe that explains why polygamy has also never been declared a fundamental right.

[justcorbly]

>>"... the deeply rooted tradition of marriage..."

If not for the religious aspect and the economic aspects, perhaps marriage would not be so deeply rooted.

In any case, why is that important? If I think a practice is deeply rooted in my culture, yet I believe it runs counter to our founding political principles, should I sacrifice the latter for the former?

As someone said earlier, I'd support any legal approach that works: courts, legislatures, amendments. If it takes a Constitutional amendment that prohibits any legislation limiting marriage (however defined) based on gender, that's fine with me.

As for civil unions, there is no reason why the economic benefits offered by the state need to be part of that package. Let each couple enter a contract outlining their rights and obligations to each other. Meanwhile, no one should get a tax break because they happen to be living with someone else.

[Matt Comer]

I'd just looove to jump into the fray here, but all I have to say is... YAY.

Unlike Mass., California will allow out of state couples to marry. When they return home, they will sue for equal protection under the Federal Constitution's Full Faith and Credit Clause. Slam dunks... all the way. Anyone else seeing DOMA (Defense of Marriage Act) sitting on death row?

"One nation under God WITH LIBERTY AND JUSTICE FOR ALL."

[SteveE]

I'm not gay, and I'm not married...So I don't care. Doing away with all marriage might end up satisfying more people.