Judging the California Supremes

The recent ruling by the California Supreme Court concerning “gay marriage” touches a political third rail, to be sure. That much is obvious by the apparent potency of the venom spat upon the ruling.

Many rail against the ruling in emotional and strident terms, accusing the justices of being “activist judges”. They declare that the court has “endorsed homosexual activity”. They shout that the court has “legalized gay marriage”. They warn that the ruling will give “new rights, powers and privileges” to same-sex couples. They lament that, soon, religions will have no choice but to solemnize the “marriage” of any same-sex couples that desire it.

How the ruling will affect our society is certainly open to debate. But none of the assertions listed above are—they are all false.

Yep. False.

How do I know? I read the court’s opinion. It’s 172 pages long. I am no lawyer, but I do know how to read. I would wager that a very high percentage of the people shouting at the top of their lungs about the “evil conspiracy of activist judges” have not read a single word of the actual opinion.

To such people, an “activist judge” is any judge who disagrees with their opinion. The Supreme Court does not sit on high and “cherry pick” cases it wishes to use to promote an agenda or a particular point of view. Cases accepted by the court have all been through multiple layers of the justice system (some several times). There is nothing random or conspiratorial about the process—it is all strictly defined by the law.

The Justices can and do draw differing conclusions, but the PROCESS by which they must judge is defined, detailed, and documented. The opinion displays all the earmarks of such a process. It is disciplined, thorough, tightly reasoned, and clearly (though tediously) expressed.

The questions the court considers are always very precisely and narrowly defined, never general in nature. They are picking over a bin of material that has already been picked over by several other courts, and all the easy decisions have already been made.

The precise question before the California State Supreme Court was: “Is it constitutional to require homosexual unions to be labeled differently than heterosexual couples when the law already affords virtually identical legal benefits, privileges, and obligations to both. Does the state’s failure to “designate the official relationship of same-sex couples as ‘marriage’” violate the California Constitution? This was the sole decision the court had to make.

It was not the court’s task to determine whether the state should designate both types of unions as a “marriage”, but only to decide if failure to do so violates the state constitution.

The first implicated issue in the decision is a determination of the legal meaning of “the right to marry”. Although the state constitution does not contain any explicit reference to a “right to marry”, prior California case law has established it as a fundamental constitutional right. In addition, the Unites States Supreme Court has determined that the “right to marry” exists as a part of both “liberty” (as protected by the due process clause) and as a component of the “right to privacy” guaranteed by the U.S Constitution.

The court cited the 1948 case of Perez v. Sharp, in which the court found that California’s then-extant laws forbidding the marriage of interracial couples violated the constitutionally established “right to marry”.

The state has already legally recognized an individual’s capacity to create a long-term relationship and raise children therein regardless of their sexual orientation. Therefore sexual orientation is not a valid legal basis for a denial of elemental civil rights.

The court determined that even though the substantive rights are the same for both types of unions, officially designating them differently impinges on a homosexual couple’s “right to marry” under the California Constitution, and treads on rights due by the “equal protection” clause of the constitution.

The court further ruled that the state interest in designating the two types of unions differently was not compelling, and the differing treatment not necessary to protect any compelling state interest, and that failing to use the same designation for both types of unions would impose appreciable harm on same-sex couples and their children by casting doubt on the validity and social acceptability of the union relative to heterosexual unions.

Crucially, the court made it clear that the California Constitution has, from the beginning, recognized religious marriage as being distinct from civil marriage. The court also held that granting the label, “marriage” to same-sex unions will not infringe on any person’s or church’s religious rights, nor require any religious organizations to change their policies or practices in any way.

The court also found that there is an important relevance between the California Domestic Partner Rights and Responsibilities Act of 2003 and the question of the constitutionality of state statutes reserving the “marriage” designation for heterosexual couples. In the court’s opinion, the state legislature’s clear intent in California Domestic Partner Act was to eliminate any legal differences in rights, responsibilities, and obligations for both types of unions.

The court draws a crucial distinction between the right to marry and the right to engage in intimate homosexual relations. This opinion has everything to do with the former and nothing to do with the latter. The court is not declaring or endorsing a “right to same-sex marriage”. The court is only ruling on the constitutionality of state statutes that prohibit the legal application of the word “marriage” to same-sex unions. The court does not intend to “deinstitutionalize” heterosexual marriages.

The court noted that the “right to marry” has never been the sole preserve of those who are physically capable of having and raising children.

In summary, the court found that the “right to marry” is a fundamental, constitutionally protected personal right for all persons, and that homosexual orientation is not a legal basis for restricting or withholding anyone’s fundamental legal rights.

SO…what does all of this mean?

Well, if you’re worried about same-sex couples having all the same rights as heterosexual couples, you’re about five years too late. There is nothing significant on the legal or political horizon that would reverse that current situation. Better get used to it.

This whole flap is over a LABEL. If Proposition 8 passes in the November 2008 election, the court’s opinion discussed herein will become moot unless and until the California Constitution is altered to permit the label “marriage” to be applied to same-sex couples. If Proposition 8 fails in November, you may consider consider going into the flower, tux rental, DJ, photography or catering businesses--or moving to Utah.

What do I think of all this? Stay tuned to this blog and you’ll find out.