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The California Marriage Ruling–Can I let myself hope?

By now, you’ve heard that the California Supreme Court ruled that the ban on same-sex marriage is unconstitutional.  There is much about  the ruling that cheers me.  [Just so you can find it, here’s the ruling–don’t print it, the pdf is 172 pages!]  As I read it, I find that I’m surprised over and over that the Court seems to be analyzing the case as though gay people are people…what a notion!

For example, the Court rejects the claim that what gay people want is “same-sex marriage”, and that there is no right to that in the California Constitution.  Rather, what gay people want is “marriage”, and there is a right to that.  The Court explicitly rejected the claim that history and tradition have restricted marriage to opposite-sex couples.  In their analysis, they looked back to Perez v Sharp of 1948, the California ruling overturning the ban on interractial marriage.  And they said that at the time, custom and tradition were all on the side of continuing the ban on interracial marriage.  But now, we find that position unacceptible.

I was interested in the Court’s analysis why the case was not a case of sex discrimination.  They said that the current law didn’t treat men and women differently–both have the same rights to marry [as long as the partner is of the opposite sex].  So, the question is not one of sex discrimination, but of sexual orientation discrimination. 

Then, the Court went on to explicitly rule that sexual orientation–like sex, race, and religion–should be a “suspect characteristic”, that is, one that requires “strict scrutiny” of the constitutionality of statutes that treat people differently based on the classification.  In some ways, this may be the most significant part of the ruling.  And, in their discussion, the Court rejected the notion that sexual orientation should not be a suspect characteristic since it is not inborn like sex or race.  The Court explicitly drew the analogy with religion, which is also not inborn, but is a suspect characteristic.  

With all this good news, why in the world should I not be hopeful?  You probably also know that there will be a Constitutional amendment on the November ballot overturning the ruling, and enshrining an ban on same-sex marriage in the California Constitution.

As an aside, I have to say that a simple majority of the voting population denying rights to a minority strikes me as problematic at best.  It seems to me that I’ve read stories that the majority of people in the U.S. would vote against the rights in the Bill of Rights if they were on the ballot.

Having lived in California for over 10 years now, I know what this election campaign is going to be like.  In a word, ugly.  I fear the worst appeals to fear and prejudice, and dramatic exagerrations of what the consequences of allowing same-sex marriage will be.

And, some years ago, I read an analysis of the issue that explained that some people feel that gay people are so “unclean” that whatever we do is similarly “unclean”.  It’s this sense that leads to “defense of marriage” statutes.  I understand that most people can’t imagine how marriage needs to be defended.  This analysis suggests that some people think it needs to be defended from profanation.

But, I’ll not be basely fearful…

Let me come back to another positive from the ruling.  The Court noted that, with the current structure of domestic partnership in California, same-sex couples have access to almost all the rights and responsibilities of marriage.  Indeed, California domestic partners file their [State] income tax as “Married”.  But the Court said that, nevertheless, the word matters.  They suggest that restricting same-sex couples to domestic partnership rather than marriage may suggest that the relationship is not as valid.  The Court said, once again, that “separate-but-equal” isn’t.  

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2 Responses to “The California Marriage Ruling–Can I let myself hope?”

  1. Kathryn Says:

    Terrific clear-minded summary of the issues! Good going, Bob. Here’s my jaded take on it: Why shouldn’t all people be equally entitled to mistake mutual lust for compatibility, to involve themselves in financial nightmares that erode emotional and affectional ties, and to go through messy divorces which provide lawyers with Porsches?

  2. Posted from United States United States
  3. Bob Says:

    Kendall, I’m afraid that your comment is not jaded, but entirely too realistic. Both Massachusetts and Canada had to figure out how to deal with same-sex divorce before they were sure that they were going to continue to allow same-sex marriage. Sigh.

  4. Posted from Canada Canada

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