Jackson Free Press

It's all over the news, but the one of the items that seems to be interesting about the ruling from a legal point of view is the notion that California has a "right to marry" written into its constitution, and that's what's being violated. Here's an interesting look at what the ruling does and doesn't mean. In that piece, Greenwald makes the argument that it would be difficult for the court to have ruled in any other way given the question that was actually before it.

There is one issue, and only one issue, that matters here: are the provisions of the California State Constitution, in light of how they have been interpreted by that state's Supreme Court in prior decisions, violated by the exclusion of same-sex couples from the legal institution of "marriage"?

Greenwald goes through a number of items that speak to whether or not the Court seems to be deciding this correctly...in point #2, Greenwald here attacks the idea that it would be "judicial activism" or "legislating from the bench":

(2) Equally misinformed will be anyone arguing that this is some sort of an example of judges "overriding" the democratic will of the people. The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their "marriage" laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed "it is up to the state Supreme Court" to decide the issue.

Here's what's most interesting to me. I think this should be the law of the land...I call it, let the government manage the contract and the church manage the sacrament (understanding full well that I may have stolen that phrase, but I don't know from where):

(4) The Court did not rule that California must allow same-sex couples the right to enter into "marriage." It merely ruled that if the state allows opposite-sex couples to do so, then same-sex couples must be treated equally. The Court explicitly left open the possibility that the state could distinguish between "marriage" (as a religious institution) and "civil unions" (as a secular institution) -- i.e., that California law could leave the definition of "marriage" to religious institutions and only offer and recognize "civil unions" for legal purposes -- provides that it treated opposite-sex and same-sex couples equally. The key legal issue is equal treatment by the State as a secular matter, not defining "marriage" for religious purposes.

Previous Comments

ID

129888

Comment

Well, I say go California!!!...you would have thought this would have been the 1st state to legally marry gays & lesbians...I know the governor, Arnold Swartzenegger? is having a fit!!I know there will be many to criticize, but when you ARE gay or lesbian it makes a difference. Mississippi will be last in this effort, no doubt... I hate to say it, but some gays & lesbians AGREE with their "straight" counterpart here. I do not understand why many of the laws here and in general play "moral gods", yeah right?!

Author

Maria

Date

2008-05-15T17:40:54-06:00

ID

129890

Comment

And the bigots are frothing at the mouth over on right-wing hate radio. Good. Maybe their heads will start spinning too. But I've yet to hear one anti-gay marriage person being asked what business is it of his or hers that two gay people marry each other. And of course, they're talking about the "activist judges" who overturned the California law. Will we hear the term "activist judges" if Roe v. Wade is ever overturned?

Author

golden eagle

Date

2008-05-15T20:44:46-06:00

ID

129933

Comment

Right on, Maria. Schwarzenegger, to his credit, has defended the ruling and spoken out in opposition to a right-wing referendum intended to modify the California constitution to prohibit same-sex marriage. If those are Hollywood values, I'll take more, please... It would have been nice if he had the chutzpah to sign the bill the legislature passed to legalize same-sex marriage last year, though. golden eagle, good question. The funny thing is that, as the article Todd links to points out, they would have had to be judicial activists not to rule the way they did. California Constitution, Section 7(b): "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens." That's crystal clear. The only way the dissenting justices were able to defend their POV was to argue that marriage was not, strictly speaking, a benefit--that the difference between domestic partnerships and marriage was a difference only in terminology. Re where Mississippi will come in on all of this, it looks like on gay rights and immigration, as was once true on civil rights, Mississippi will be one of the straggling states that has to be brought into the modern era by the feds. That'll inevitably happen if we get a better Supreme Court, though I'm not 100% sure the one we have now wouldn't rule correctly on same-sex marriage if they actually took it on directly. Kennedy, Stevens, Ginsburg, Souter, and Breyer makes for a 5-4 majority, all of them know what Loving v. Virginia means, and they made up five of the six justices who struck down all sodomy laws in Lawrence v. Texas. They may just be waiting until it's politically safe to rule on the issue.

Author

Tom Head

Date

2008-05-19T06:03:54-06:00