Number of States Recognizing Marriage Equality Doubles
The California Supreme Court today decided a case in favor of marriage equality for all loving couples. There are now two states in the union (i.e., 4% of the country) where marriage equality has been legally recognized.The opinion is available here: In Re Marriage Cases, S147999.
The heart of the litigation was the question whether "domestic partnerships" actually constitute equality with "marriage". New Jersey had been struggling with that question and decided on a definite "no", but hasn't really decided what to do about it. The issue is also alive in Connecticut and Vermont. These are all places where domestic-partnerships have been legalized but where people have quickly discovered that such arrangements have not been accepted as the equivalent of marriage and did not automatically confer the many legal benefits on domestic partners as had been originally expected.
Now, this is not what the Supreme Court said was their question, but in outcome it looks very similar. In the opening of their opinion the court restricts its attention to determining, when "domestic partnerships" have been created by statute to provide substantially the same benefits as "marriage", whether is violates the California Constitution to call them by different names: "domestic partnership" vs. "marriage".
…we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights 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. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.
This seems to me not much more than an academic quibble, but it could provide substantial legal protection against legal attacks on the judgement. The Court considered a number of subordinate issues, e.g., examining the fundamental right to marry and recognizing that partnering with legal recognition should not be denied based on sexual orientation, and these are part of the decision, but the stated decision concerns this narrowly defined issue, which is nearly unassailable.
They noted that even if "domestic partners" are afforded substantially the same benefits of "marriage", it does not confer the respect and dignity to their relationship that "marriage" does, and that this violates the California Constitution.
They said what many people have seen as obvious: giving marriage rights to same-sex couples does nothing to diminish the rights of mixed-couple marriages.
Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
The emperor was naked!
There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring or and raising children.
In a later discussion, it's interesting that the Court discusses Loving v. Virginia, the case (recently in the news because of the death of Mildred Loving), the US Supreme Court case that struck down miscegenation laws. In a move sure to inflame the most reactionary, the Court draws some lessons from that case and even makes some parallels with discrimination against black people. Such cheek!
Still later, they address the question of whether homosexuality could be treated as a "suspect class" if, as some contend, homosexuality is not an "immutable" characteristic. Well, that argument has always struck some of us as smoke-and-mirrors since we know that many, many protections give religion the status of "suspect class", and surely choice of religion is not exactly "immutable". The Court now recognizes that this "immutability" argument is also specious and to be rejected.
A loud argument in favor of "traditional marriage" for heterosexuals only has long been contradictory. On the one hand, the word "marriage" is only a word and one may confer all the benefits of marriage on domestic partners without actually having to use the name "marriage'. On the other hand, "marriage" is a word with such a huge emotional, traditional usage that it must be protected from being misapplied to anything non-traditional that would be a lesser arrangement. The Court now recognizes that these are contradictory aspects of a useless argument.
There's lots more interesting stuff in the opinion–it is, after all, 172 pages long. There are many examples where the court has carefully examined the specious arguments ("marriage is for procreation", for example) of those opposing marriage equality and turned said arguments on their heads. This is extremely useful beyond protecting this opinion from rapid and potentially successful attack; many courts in other states are looking to do the right thing and all of them can make use of legal ideas and arguments that evolve in other courts.
So, to end, the brief statement of the Court's conclusion:
Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.
3 Responses
Subscribe to comments via RSS
Subscribe to comments via RSS
Leave a Reply
To thwart spam, comments by new people are held for moderation; give me a bit of time and your comment will show up.
I welcome comments -- even dissent -- but I will delete without notice irrelevant, rude, psychotic, or incomprehensible comments, particularly those that I deem homophobic, unless they are amusing. The same goes for commercial comments and trackbacks. Sorry, but it's my blog and my decisions are final.
on Thursday, 15 May 2008 at 21.07
Permalink
I'll muster up some congratulations, even though "my" side lost, 4 to 3.
I have a couple qualms. The same-sex debate on this has largely been utilitarian, e.g. "we want the workplace family health plan, the pension, and the inheritance". Now the court jumps into handing out "respect and dignity". Seems like a bit of a swampy minefield.
Traditional marriage is rooted in procreation, even if today it is often theoretical. If we step away from that, we are looking at an emotional adjustment, one I'm not sure we are ready for. But what do I know. I'm sitting here in my underwear drinking a beer.
on Thursday, 15 May 2008 at 22.14
Permalink
Thanks for the congratulations, although I could say I hate to think there are "sides" on this issue.
I hear your qualms; I don't know whether I can ease them.
Dignity and respect is really what the argument is largely about, but politically it isn't. Politically and judicially those arguments are too emotional and don't have any real substance, generally speaking, so arguments have been made mostly in the realm of tangible benefits and equality in that arena.
I was surprised myself at the way the Court argued from the "dignity and respect" side, but of course it's part of the case and it's a significant component. I thought, too, that in the context of their entire opinion it made a good case, rather central to the whole thing, really. It was nice to have it recognized.
I hear about the "traditional" aspect plenty, of course, but people on "my side" usually shake our heads. The "traditional" form of marriage that some claim has been around since the dawn of time, hasn't. Of course, they mean since "creation", i.e., Adam & Eve–but that seems a shortsighted view to me.
As has been pointed out, the form of marriage most often described in the Bible is polygamy–not exactly "traditional". Marriage between a man & women, when it took a form similar to today's, had more to do with preserving property through primogeniture (that is, by creating non-inheriting bastards as a class) and was only for the very well to-do.
It's only in much more recent times that normal people either 1) bothered, or 2) were allowed to get married. The modern idea of marrying for "love" is a very recent concept. And, as the Court recognized, procreation is something the Catholic Church loves to see happen in marriages, but producing issue has never been a requirement of marriage, and the argument that that's what it's really about was manufactured in the late 20th century.
I don't know whether that will settle any qualms, but since you're sitting around in you underwear you might as well have another beer.
on Friday, 16 May 2008 at 23.42
Permalink
Great post, Jeff. You went into the nitty gritty details of the decision in a very skillful way.
RSF, this isn't the court handing out respect and dignity. A court can do plenty to take those things away. (As an acquitted man once famously asked: "Thank you very much. Now, where do I go to get my reputation back?") But courts cannot confer or distribute dignity and respect.
What courts can do is recognize rights and rule for their universal recognition and protection in society under the law. That is no small thing.
Being heterosexual and proud of it, I take it your side is my side in that sense. But I am more than just a sexually oriented individual. I'm part of a society, a human environment — a place better to live in when it's a community and not battleground of warring factions. I don't see that human environment protected in any way, much less made better, by denying to others rights I've always enjoyed and benefited from by accident of birth. Quite the contrary. Which is why I'm glad the California supremes decided as they did and why I hope this precedent works its way across the country.
We never go wrong when we risk erring on the side of fairness, treating others as we want and expect to be treated.