Marriage and the Constitution

So a ballot initiative to write California’s Defense of Marriage Act into the State Constitution has qualified and will be voted on in November.  A dozen states have filed amicus briefs with the California Supreme Court, asking them to defer implementation of in re Marriage Cases until after that vote, hoping to avoid a Full Faith and Credit debate over whether to honor the California marriages of their same-sex citizens. I think both actions, while predictable, are ill-advised and ill-fated.

My basis is not my personal beliefs (which have evolved a lot over the past 5 years) but a reading of the decision in Marriage Cases itself.  If you’ve only seen the press and blog coverage, you owe it to yourself to at least read the summary (  The reasoning is compelling and provides a strong argument as to why limiting marriages to persons of the opposite sex not only isn’t constitutional, but should never be.

Of course the decision was decried immediately (as if the denunciations had been prepared in advance) as that of a liberal activist court of unelected judges legislating from the bench to invent a new constitutional right where none had been before, overturning the clearly stated will of the people in order to grant special rights to gays.  The problem with this knee-jerk response is that not a word of it is true.

First, the California court is moderately conservative, all but one appointed by Republican governors Deukmejian, Wilson, and Schwarzenegger.  The majority opinion was written by the Chief Justice, who was appointed to his first judicial bench by Reagan.  Every Justice stood for confirmation in a pubic election after their appointment, and they were all confirmed with over 60% of the popular vote.   So much for liberal, unelected judges.

Second, the ruling takes great pains to do nothing but invalidate a statute on constitutional grounds.  That’s what Supreme Courts do. Anybody who takes issue with the Court going against the will of the people does not have a glimmer of understanding of how constitutional democracy works.  The key to our freedom is that the majority cannot impose its will on any minority in a manner that violates fundamental rights under the Constitution.  When Republicans politicians rally for “originalist” judges, this is exactly what they are asking for: judges who do not look at a law in the context of the times, but rather look to the text of the Constitution, to determine constitutionality.  The Court gave the Legislature no instruction on how to cope with the ramifications of striking down Family Code section 308.5; it’s the Legislature’s job to make laws, and the Court’s job to judge those laws to be constitutional or not. So much for “judicial activism.”

 Third, the decision is scrupulously buttressed by decades of case law that addresses the same balance of individual rights versus the state’s compelling interest.  In fact, the ruling turns on the fact that California law already grants same-sex couples virtually every right granted to married couples, save for the word “marriage.”  Granting same-sex couples an official marriage creates no new rights for them in California.  It doesn’t make them more special than current married couples.  (Even the dissenting opinion acknowledges that even without the designation, the Constitution requires the State to extend equal rights to same-sex couples.)  So much for “new and special rights.”

But the beauty of the decision is where it turns the defendants’ arguments back on themselves.   The advocates of Proposition 22 argued about the sanctity of marriage, its special status in society, and the dignity and respect that marriage confers, and how that must be preserved.  The Court agrees.  The word “marriage,” especially when given the weight of the State, is something valuable and precious, and official designation of marriage is of material value in society.  (They cite precedents where the married state of litigants is material in the court action.)  The State, therefore, must provide equal protection under the law when conferring this precious designation of stature and respect.  If two relationships are legally equal in all other respects, but a law designates one with a more valuable term and the other with a less valuable one, that law is unconstitutional. That’s the crux of the decision.

The Legislature is now left with the implementation of designating both same-sex marriage and opposite-sex marriage with the same term: either giving marriage to gays, or giving straights Registered Domestic Partnerships.  Here the genius and hilarity of the decision comes full force.  Heterosexuals who rankle at having the word “marriage” taken from them and being given a package of absolutely equal civil rights called a “Registered Domestic Partnership” are simply proving the correctness of the decision.  If you claim separate is equal, but you wouldn’t take for yourself what you offer the other side, it isn’t equal.

And this is why fighting gay marriage is inadvisable for social and religious conservatives.  The State will never touch the right of churches to discriminate on which unions to sanctify.  The First Amendment will always win that argument.  But if religionists fight to have the state defend their religious belief, they may lose the state as an ally in defense of marriage itself.  

The State does have a compelling interest in the marriage of two persons.  The two largest parts of the California statutes are Property and Family Law.  An exclusive contract between two persons to hold property in community and joint custody of dependents is the core of both bodies of law, and a definition of what is a legal couple is absolutely necessary.  (Which is also why gay marriage has no bearing on polygamy, pederasty, or bestiality—an exclusive contract requires two legal persons.)  But the State has no compelling interest other than identifying the parties in the exclusive contract.  If pressed, the State could wash its hands of marriage entirely, and simply require a contract similar to a lease agreement or articles of incorporation, leaving marriage entirely to the churches as a private but meaningless designation.  That’s a Pyrrhic victory for the churches.

In the end, some elected, Republican-appointed judges strictly interpreted the Equal Protection clause, found a just case to hold individual rights above the power of the State and keep the Government’s nose out of people’s business, and left the messy details of actually writing laws to the Legislature.  That sounds pretty conservative to me.  I would advise against the voters and attorneys general of other states in interfering with this, lest California change its mind and do something actively, you know, liberal.


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