05/16/08
CA Supreme Court upholds same-sex "marriage"
Yesterday, by a 4-3 vote, the California Supreme Court overturned a state law which restricted marriage to being between a man and a woman. The Court went out of its way to say that they were not attempting to rule on the policy choice of whether “a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but only to determine whether the difference in official names of the relationships violates the California Constitution.
It’s an important point, though there’s no doubt that the judges understood that the ruling would not be viewed so narrowly.
Rather than get into the nitty-gritty of the decision, I’d like to make a broader point: The reason this is even a problem is that government has inserted itself into what is essentially a religious institution and a matter of contract between two people.
(Freak, I expect you to respond to this…)
I do not buy arguments made (including by The Freak) that there is enough of a state interest in marriage that it should be the subject of law, much less the cause of a benefit or penalty in the tax code.
Gay-rights activists have a legitimate argument to make about equal protection. If the government is going to let two people enter into a contract and give it a name, it’s not clear they should be able to pick and choose which two people can enter that contract. I fully understand the arguments this leads to, such as “Should incest then be legal?”, but when it comes down to prior restraint on liberty versus allowing freedom and dealing with its warts, I’ll generally side with the warts. I have argued in the past that private citizens and businesses should be able to discriminate, and government shouldn’t. I remain convinced of the correctness of that position.
However, those who oppose this ruling have just as good an argument to make, as judge Baxter did, that “in reaching this decision…the majority violates the separation of powers, and thereby commits a profound error” by overturning a vote of the people. Baxter adds “I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental -- article III, section 3, the separation of powers clause.”
Judge Corrigan made a similar point: “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.”
In California, laws are already in place “under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.” So today’s ruling was technically about whether same-sex couples can call themselves “married”. But the ramifications of the decision will no doubt be interpreted more broadly, both inside and outside California.
My opinion is that on balance although gay rights activists have an argument about equal protection, the more important value to protect is separation of powers and keeping unaccountable judges from acting like legislators or, even worse, overturning the results of valid elections. This should be solved by getting government out of the marriage business entirely, and then letting any church, synagogue, Hindu temple, or whatever, decide what sorts of marriages they’re willing to perform.
For the record, I do not expect the issue to be as big a political force (for Republicans) as it has been in recent years, particularly since John McCain opposed a constitutional amendment to ban same-sex marriage and is generally struggling to gain the enthusiasm of the Republican base, whatever that is these days.
6 comments
on 05/16/08 at 08:08
I couldn't agree more and I was having this exact same conversation with someone on hearing the news of this decision. The government should get out of the marriage business altogether and simply allow for a contractual 'civil union' between two people which affords rights and obligations that the courts can enforce.
'Marriage' is a religious construct and as such the government has no business becoming involved.
It is my opinion the the G/L community is using government as a cudgel against those religions and portions of society which do not condone or accept their sexual orientation and behavior.
Everyone is free to choose the religion which best suits their beliefs and reject those which do not. Various religions and sects have a right to cling to their belief structures and exclude those who do not follow the rules of those religions.
There is no 'legitimizing' factor to be gained by having the courts impose an arbitrary semantic on society that seems designed just to slap 'non-progressive' religions in the face.
Though a non-believer myself I was raised Catholic and was constantly amazed by the foolish thinking and arguments of 'professed' Catholics who thought it legitimate to practice birth control, not believe in transubstantiation, demand that women be allowed in the priesthood and that the church accept gay and lesbian unions and lifestyles etc. My question to them was always ' why do you call yourself a Catholic?'.
There seems to be a disconnect in many people as to what a faith or religion is and is not. It is a codified system of beliefs and rules based on those beliefs, it is not a buffet table where one chooses which articles of the faith to accept and which to reject. You are either an adherent or not.
This ruling actually smacks up against the separation of church and state as does the government having much of anything to say about the religious institution of marriage. The semantic ruling should actually go the other way and require that the state drop the term 'marriage' from the law, allow for all civil unions and recognize that 'marriage' as defined by all legitimate religions is simply a form of civil union under that law.
End of story, case closed, childish nonsense over!!
on 05/16/08 at 09:21
on 05/16/08 at 10:53
on 05/16/08 at 22:06
What is not open to discussion (and if you invested half as much time studying history as you do politics you would know) is the fact that marriage developed outside religion in our legal tradition (think Greek and Roman law). Religious ceremonies were inserted orthogonally into what was fundamentally a civil matter.
The purpose of marriage was clear: the state had an interest in fostering the orderly and efficient reproduction of its citizens. The legions had to be replenished for the security of nations; the economies needed labor (these two statements are still true today, by the way.)
The remnants of this purpose are still around. As Ben noted, consanguinity prohibits marriage (you don't want your legionnaires inheriting too many genetic deformities) in all states; in Virginia (and in most states, I believe) the impotent cannot marry (it was the only type of infertility you could easily detect). The list of traditional prohibitions against marriage goes on, and it's all pretty much aligned with rationale (or perceived rationale) in support of fertility.
Consider, too, that in societies with no problem with homosexuality men were expected to marry women and beget children (not to do so was considered a betrayal to country) while at the same time were socially free to continue involvement in homosexual relations (in Sparta, for instance).
So, my friend, the fact that a religious tradition developed subsequently (primarily in the Judeo-Christian tradition, which is very recent in our Western European culture) is irrelevant. Marriage was borne out of a critical state interest.
This conclusion, which I think is pretty hard to refute even by you, points to an obvious error made by the California court: marriage is not a right. It is a public contract (in fact the Romans referred to it as such) which carries obligations for performance (pardon the expression). Those who are unable or unwilling to perform under its terms were barred from contracting.
This conclusion also makes the rest of the debate pretty easy. Does a compelling state interest continue? If it does, then homosexuals have no business marrying because their unions are presumptively infertile (like the impotent). If it does not, then I agree with you -- the state needs to get out of the marriage business and simply allow private contractual relationships to carry the load (and allow siblings, for instance, to enter into such contracts.)
But I do disagree with you. I think the state (and note that I'm not touching the federal issue) does have a compelling interest. Consider demographic crises in most of Europe where many governments are now throwing money at couples to have children. Consider the reliance of modern economies on healthy population growth. The only groups who fear population growth are radical environmentalists who have long drunk of the Malthusian cool-aid.
on 05/19/08 at 06:14
I've told you, Ross, that I grew up in north Florida (which might as well have been south Alabama) in the fifties and sixties and the only reason there aren't laws there right now banning inter-racial marriage and segregated schools and segregated public transportation-- hell, segregated everything-- is because activist judges overturned the will of the majority as expressed in legitimate elections.
The reason we have courts (well, one of the reasons) is to prevent the tyranny of the majority.
But your solution to the marriage thing is so blindingly simple blindingly simple I I can't understand why it's not policy: People can join whatever contracts they wish and religions can conduct whatever ceremonies they wish.
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