Speaking of same-sex marriage, in a 4-3 decision the CA Supreme Court has declared that same-sex couples have the right to have their legally recognized relationships called “marriage.” We are only the second state in the nation to do so (MA was the first back in 2004).
The headlines and news articles are saying the Court approved same-sex marriage, but that is not true. What they did was all that was left for them to do: to give the name “marriage” to those who are already married in the practical sense of the word. Domestic partnerships in CA were already identical to marriage in every respect, but without the name. While on a practical level, then, this ruling doesn’t mean much, it is huge in terms of political and social significance. While not much more than a name (marriage) separated domestic partnerships from marriage in CA, there is a lot in a name! Now that same-sex couples have the benefits as well as the name “marriage,” they have made a huge step forward in achieving social approval. Furthermore, as goes CA, so goes the nation.
I have not read the opinion of the court (it hasn’t been released yet to my knowledge), but the news article reported this little excerpt from the majority opinion (penned by Chief Justice Ronald George: “In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation.” Say what? Nothing in the wording of the constitution has changed in regards to this issue, so what does earlier versus later times have to do with anything? Oh, I forgot. These judges don’t think it’s their job to interpret the Constitution. They think it is their job to institute progressive public policy when the public is apparently too stupid to do so. Infuriating!
May 16, 2008 at 7:49 am
I think you correctly stated that the practical effects of this are nil. I obtained a copy of the opinion (it was linked to a LA Times article posted yesterday) and read through some of it. What concerned me the most was that the court declared that sexual orientation issues are to be reviewed under strict scrutiny. These issues have never before been reviewed under this exacting standard. What basically happens under strict scrutiny is that it is virtually impossible for a law to withstand a challenge. Even if the voters approve a constitutional amendment regarding same-sex marriage, any other actions regarding same-sex issues will be reviewed under this standard. Unfortunately I have not seen this aspect of the decision discussed thus far.
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May 16, 2008 at 1:19 pm
I have also obtained a copy of the decision. I’ve read up to page 68 thus far (big document).
I also noticed that they judged it by strict scrutiny. Even the MA supreme court didn’t do that. Al Mohler pointed out the same thing.
In many ways I agree with their conclusion (it doesn’t make any sense to call identical “packages” by different names), but some of their reasoning is poor.
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May 16, 2008 at 2:41 pm
Paco,
I just finished reading the court’s justification for treating sexual orientation as a suspect class (pp. 93-100). I have to admit it sound pretty convincing from a legal perspective. Do you have any objections to their reasoning?
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May 17, 2008 at 7:49 am
I can see how what the court said can be convincing, however, there is a major flaw underlying the courts rationale, specifically related to the religion argument. The court stated that religious discrimination is reviewed under strict scrutiny even though choice of religion is not an immutable characteristic. This, to me, is a non-sequitor.
Under the US Constitution there are two ways to obtain strict scrutiny review, suspect classifications and fundamental rights. Religion falls under fundamental rights due to it’s protections under the 1st Amendment. With that amendment being incorporated to the states, religion has to be reviewed under strict scrutiny due to US Constitutional law regardless of how states want to view it. So to use religion as an analogy to sexual orientation is an erroneous use of an analogy.
There are some other issues I have personally, but I since I have not reviewed CA decisional law related to sexual orientation issues I would need to conduct that research before making any comments about the appropriateness in those regards.
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May 19, 2008 at 11:15 am
Paco,
So religion is not a suspect classification, then? It is only considered a fundamental right, and as such it is reviewed with the same scrutiny as a suspect classification?
As I read on in the decision, I recall one of the dissenting justices also making the point that awarding suspect classification status is usually done at a time when the group is politically powerfless, which is hardly the case in CA.
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May 21, 2008 at 8:47 am
I have done some additional research on this issue and I must take back my comment regarding religion not being a suspect classification. It is a suspect classifiction BUT (and this is a big but) I still think the analogy to sexual orientation is an incorrect one. The attainment of suspect classification for religious discrimination is founded in the 1st Amendment’s protections of religious expression. It would be inconsistent with those protections to allow discrimination based on religious belief and expression. There is no such parallel with respect to sexual orientation. The majority’s failing to discuss this is a travesty and a blantant attempt to avoid this exact argument.
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May 21, 2008 at 12:06 pm
That is a good point.
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May 23, 2008 at 7:44 am
I think that the term “legal marriage” should be ended and rename it as “civil union.” Then each church can decide who is or is not married. By privatizing the word “marriage,” you eliminate the equal protection problems.
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May 23, 2008 at 11:07 am
Arthur,
Marriage is not a religious institution. It is a human institution with religious significance. So there should be no distinction between a secular and “church” definition of marriage. Marriage is what marriage is, whether one is religious or not (that’s not to say that the obligations/rights may look different in a secular vs. religious understanding).
I disagree that privatizing the word marriage eliminates equal protection problems on two counts. First, I disagree that equal protection requires that the institution of marriage be expanded to include same-sex couples. The principle of equal protection is that equally situated people be treated equally. Heterosexual and homosexual relationships are not equally situated, and thus there is no reason to treat them as such. If there is no reason to treat them equally, then there is no reason to afford them the same designation.
Secondly, the issue is not what we call the relationships, but what relationships are given official recognition and social approval in the first place. Personally, I could care less if the government changed the name for the concept of marriage to “civil union.” It would not change what marriage is, but only what it’s called. What I do care about is the government giving benefits to relationships that do not qualify for them, and treating relationships as equal that are not equal. That’s the real issue here, not the word “marriage.” Christians who fight to preserve the exclusivity of the word “marriage” without the exclusivity of the benefits and purpose of marriage are misdirected in my opinion. See my latest post for a little more detail on where I am coming from.
Jason
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October 13, 2008 at 11:28 am
[…] couples all the rights and benefits available to heterosexual married couples, so as I noted in my comments on the CA case in which same-sex marriage was legalized, it only makes sense to extend the name […]
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