Monday, May 19, 2008

Clarifying the CA Supreme Court ruling on gay marriage

After reading a bit about people's reactions to the California Supreme Court's ruling on gay marriage, I want to clarify some misconceptions about the verdict.

First, the court wasn't debating whether gay marriage should be legal; they decided if calling same-sex unions "domestic partnerships" and hetero unions "marriage" was constitutional. The decision states,

"Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a "marriage" whereas the union of a same-sex couple is officially designated a "domestic partnership." (3-4)

Basically, if both domestic partnerships and marriages carry the same legal benefits, is it constitutional to limit marriage to just between a man and a woman?

It somewhat reminds me of Plessy v. Ferguson that ruled "separate but equal" based on race. If civil unions and marriages have the same legal benefits, they are separate but equal. However, Brown v. Board of Education in 1954 ruled that separate but equal isn't equal, and this Californian court decision is saying the same thing.

The court points out that sexual orientation doesn't limit a person's ability to form a loving relationship and a family and that sexual orientation isn't a reason to deny rights to people, even the right of marriage.

Marriage carries a certain social weight and respect that domestic partnerships don't have. Allowing gay marriage gives same-sex couples the same dignity as opposite-sex couples, to embrace the full humanity of everyone and say "Your relationship is just as valid as mine; your love is just as life-giving as mine; and you, as a person, are worthy."

"But what about the will of the people?" some ask. "The people of CA don't want gay marriage and have voted against it!"

The court ruled on whether denying gay marriage was constitutional, not if the people of California agreed with it. Popular opinion doesn't hold any sway on the Constitution; it's a living document that guarantees inalienable rights. At times, popular opinion didn't want the emancipation of slaves, but that doesn't mean popular opinion was right. In some places in the United States, popular opinion probably says that guns should be outlawed, hunting or otherwise. You know what though? Tough shit. The right to bear arms is written in the Constitution so unless there's an amendment, all guns will never be banned. I'm generally under the idea that the Constitution shouldn't be used to limit rights, but instead guarantee freedoms, so I wouldn't necessarily be for an amendment in the first place. If we say we're for protecting rights, we've got to protect all of them - free speech, guns, assembly, a trial of peers, speedy trials, religion, and yes, even marriage.

If the three presidential candidates were running just in California, their positions on gay marriage would be unconstitutional, by the way.

Here's what I want to know: How does two people of the same gender getting married hurt anyone? Why is it so threatening to someone that two people want to join together and publicly declare their love as people have been doing for centuries?

Obviously I'm biased and think gay marriage is great, but I honestly see no harm in ensuring that all people, regardless of race, ethnicity, religion, or sexual orientation, have equal rights.

Thanks to Disagreeably Right for prompting the post. You can find the full text of the court decision here.

14 comments:

Ennui said...

The only thing that really gets me, there IS no "right to marriage". Marriage is, for all intents and purposes, technically a privilege, as one has to be licensed for a legal marriage.

Much like driving. Many people consider driving a right, not a privilege, but you require a license, and the government can deny your application for said license, same as for marriage.

Other than that bit, I don't really care.

I don't mind who gets married to whom, I'm just slightly bothered by people considering marriage somehow a right, when no one, technically, has a "right" to it.

This makes sense in my head. On paper, well, we'll see.

Anonymous said...

i think it all has roots in the demasculinzation of our society.

look at people like eminem. largely antigay. in their quest for their stolen masculinity, men in our society attack what is obviously immasculate to them. like gay men. and women.

*shrugs*

backlash of feminism?

Kacie said...

Ennui--
You don't have to really *do* anything for the license. Just take a blood test and pay your fee.

It's not quite the same as a driver's license.

halfawake said...

@ennui Is it really about a "right" to marriage? I thought it was about the right to equal treatment under the law...

Lindsay said...

The reason I described it within the context of the "right to marriage" is because in the California State Constitution, the right to marriage has been recognized as an inalienable right.

I'm not sure if that's something enumerated or something determined through court decisions (the decision did mention right to marriage in the context of interracial marriages and court decisions striking down laws banning that). The relevant text in the court decision is on pages 5-6 around where they mention Perez v. Sharp.

Ennui said...

You don't have to really *do* anything for the license. Just take a blood test and pay your fee.

It's not quite the same as a driver's license.


Blood tests aren't every state. It's actually hardly any, anymore.

Still, it remains that it's a licensed privilege, not a "right", per se. They can still deny the application if they see fit.

@ennui Is it really about a "right" to marriage? I thought it was about the right to equal treatment under the law...

Like I said, I don't really care who does what, I'm just commenting on the use of the language to say that people have a "right" to marriage in general.

The reason I described it within the context of the "right to marriage" is because in the California State Constitution, the right to marriage has been recognized as an inalienable right.

Wasn't aware of that. I was speaking more federally.

Like, the constitution doesn't exactly declare a "right" to marriage, you know?

Lindsay said...

It isn't an enumerated right, but the Constitution leaves room for rights not specifically mentioned.

In making their decision, the CA Supreme Court considered the interracial marriage case of Perez v. Sharp that established a right to marriage regardless of race and based off of that case, ruled sexual orientation as under the equal protection clause of the 14th Amendment.

If SCOTUS were to consider a similar case, the CA ruling could act as a model for how they might decide. On par with CA's Perez v. Sharp, SCOTUS ruled in Loving v. Virgina to strike down miscegenation laws and said, "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."

Since SCOTUS labeled marriage a fundamental right, it's conceivable that any gay marriage case brought before the court could be decided in a similar manner to the CA case.

I probably should have made those points in my original post - I'm glad you asked about it.

The Great American said...

" "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival." "

I don't believe that this would be a good argument for homosexual marriage. They could look at the first part and say that "yeah, it's a civil right so homosexuals should be able to marry", but if they did that they would have to totally ignore the second part. When they said marriage was fundamental to our very exsistence and survival, they meant that marriage is important in order to produce offspring. And I'm not a scientist, but i don't think homosexuals can reproduce. Plus, I know we will most likely disagree on this, but homosexuality is a choice, whereas race and gender are not. So it would most definitely be wrong to deny rights based on gender and race, but I don't believe that Perez v. Sharp is a true blue precedent.

Lindsay said...

How do you reconcile the argument "because gay marriage doesn't produce children, we shouldn't allow it" with opposite-sex marriages that, for any number of reasons, don't produce children? In the words of Lewis Black, "a one night stand with no love, a Quaalude, and three beers can also bear children."

And technically, it isn't marriage that is fundamental to our survival, but sex.

The Great American said...

"SCOTUS ruled in Loving v. Virgina to strike down miscegenation laws and said, "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.""

I never said that people shouldn't be allowed to get married if they can't reproduce.

But, why else would marriage be "fundamental to our very existence and survival." I believe that meant that we shouldn't deny a man and woman of different racial backgrounds the freedom to get married, because if we do, we impede the ability to produce offspring. In the case of gay marriage, they can't produce offspring therefore gay marriage is not "fundamental to our very existence and survival" as was stated in Loving v. Virginia

And you're right when you say that sex is what is technically fundamental to our survival. But what I also believe the decision was say was that sex was something for inside the boundaries of marriage meant to show love AND reproduce.

And with all due respect, please don't quote me:

"because gay marriage doesn't produce children, we shouldn't allow it"

unless I actually say it. I'm honestly not trying to be rude. Thank you.

Lindsay said...

It wasn't meant to quote you but instead mark the enclosure of the issue - I just thought it was the best way to clearly and concisely mention that argument which you seemed to be referencing. Apologies if it came off any other way.

So you're saying since homosexual marriages can't produce their own children, they shouldn't be allowed? If the ability to reproduce is part of what a "marriage" hinges on, still, what about the opposite-sex couples who are biologically unable to have children?

But what I also believe the decision was say was that sex was something for inside the boundaries of marriage meant to show love AND reproduce.

But it didn't say that explicitly. Here's the quote from the Loving case:

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." (for clarity's sake, the ellipses after the first sentence left out various relevant cases they referenced)

For the court here, it's not about defining sex within the boundaries of marriage, but about basic rights bestowed upon all people. If sexual orientation falls underneath the equal protection clause, as decided in the CA case, then any laws excluding something based on sexual orientation are unconstitutional.

The Great American said...

"Under our Constitution, the freedom to marry, or not marry, a person of another race"

Race is something that somebody has NO control over. Therefore restricting based on race is most definitely wrong. But homosexuality is a choice therefore should not have special exceotions for it.

Lindsay said...

Personally, I don't think sexual orientation is a choice. However, if the courts rule that sexual orientation falls under the equal protection clause, then it doesn't matter if it's a choice or not - it can't be used to deny people the right to marry or not.

Sabertoothed Screaming Lemur said...

I just HAD to leave a comment on here. It's still funny to me when someone says "homosexuality is a choice". What if YOU were gay? Do you think you'd see it as your choice then? And I love how people assume I just woke up one morning and said, "You know, I think I'll choose to be attracted to women and ostracized, discriminated against, harassed, and maybe physically harmed! Yeah, that's a great idea!" How can anyone think we would choose to be "othered" the way we are now?
And FTR, even if one does "choose" to be gay, it doesn't make it wrong, and doesn't mean gay folks should be denied the same rights everyone else gets (like marriage), since we're, you know, sentient human beings and all that civilized stuff.