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diggCalifornia court may not have the last word on marriage
America’s most influential state court has given the thumbs-up to same-sex marriage.
A divided 4-3 California Supreme Court ruled on Thursday that marriage as the union of husband and wife is unconstitutional under the California constitution. The narrowly divided and divisive majority ruled that there is a fundamental constitutional right to same-sex marriage, and that creating civil unions as an alternative for same-sex couples amounted to a violation of the state equal protection clause.
[R]eserving the historic designation of "marriage" exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution... Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest.
California is the first court since Massachusetts in 2003 to rule that marriage laws constitute unconstitutional discrimination. Voters in 27 states from Oregon to Wisconsin have voted to protect marriage in their state constitutions, and courts in diverse and liberal states such as Maryland, New York, and Washington have rejected the argument that same-sex unions have a constitutional right to be considered "marriages".
For example in 2007 the Maryland Supreme Court ruled: "the State’s asserted interest in fostering procreation is a legitimate governmental interest... marriage enjoys its fundamental status due, in large part, to its link to procreation. This "inextricable link" between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).
Similarly in 2006 the Washington State Supreme Court concluded, that "limiting marriage to opposite-sex couples furthers the State’s interests in procreation and encouraging families with a mother and father and children biologically related to both."
Less well-known is the extent to which European courts have also rejected the idea that same-sex marriage is a fundamental human right.
In K.B. v National Health Service Pensions Agency, et al (10 June 2003), the European Court of Justice noted "Article 12 of the European Convention on Human Rights protects only traditional marriage between two persons of opposite biological sex."
In Sheffield & Horsham v United Kingdom (1998) the European Court of Human Rights similarly concluded, "the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family."
Most Americans, like most courts, understand that marriage is not bigotry. It is common sense -- unions of husband and wife have a unique status in law and culture because they really are different from other kinds of unions including in this way: they are uniquely necessary because they are the unions that both make new life and connect those children to their own mother and father.
Two of the three justices who dissented from the majority decision also worried about where court activism might lead marriage in the future:
The majority... simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.... That approach creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory. Who can say that, in ten, fifteen, or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?
Thankfully this radical court decision may soon be overruled by a higher power in California.
This spring NOM California, a project of the National Organization for Marriage which I head, raised almost US$1 million and helped Protect Marriage collect 1.1 million signatures to put a state marriage amendment on the California ballot this November. The signatures are awaiting certification by the Secretary of State’s office.
In other words, California's supreme court has just ruled that the 62 percent of Californians who voted for marriage as the union of husband and wife are bigots.
But thanks to the 1.1 million Californians who signed petitions to get a constitutional amendment on the ballot this November, activist judges will not have the last word in California. California voters will.
Maggie Gallagher is President of the National Organization for Marriage. For more information on how to overturn this California court ruling go to www.NOMCalifornia.org
For a summary of recent court rulings see "American Courts on Marriage: Is Marriage Discriminatory?", by Joshua Baker.
Francis said: “Thanks, Darren. You are right. I didn’t spell it out so succinctly as I thought you, David, might say it is wrong to discriminate against academically poor students, who will feel ‘hurt’ by being excluded.”
Francis, I don’t have to post any more. You’ll just read my mind and post for me. As for Darren’s post, I’ve never heard hyperbole described as being succinct before. I’d love to see his documentation.
Public schools don’t take government money; their fees are anything up to £25,000 p.a. (Eton, Harrow etc). Many middle-class, non-rich parents make enormous sacrifices to send their children to good (private) schools rather than put them through the state school system. Oxbridge doesn’t ‘reserve’ places for state school pupils; they take students on academic merit - and bend over backwards to find students from less privileged backgrounds. They don’t want just clever, rich students, but a proper social mix; they run summer schools to help state school (these are secular, not C of E) pupils learn the confidence to cope with applications and interviews. The public schools also try to help their state school neighbours, sharing sports facilities and giving specialist seminars. Yet the gulf between privately educated pupils and state school pupils (apart from a few excellent comprehensives) is inevitably very wide. The educational system in this country is a long and complicated subject; too complex for a brief post.
Francis, I agree that the best private schools (public schools in England) shouldn’t lower their standards for any reason. Every society needs a standard to aspire to. But again, are the schools your talking about accepting money from the government? I believe that, in England, schools like Oxford hold places for the top students from a variety of government (C of E?) schools. It is not my impression that this lowers standards in any way. It does serve to soften the impact of privilege. In America we have the odd circumstance of schools lowering standards for white males. If schools accepted students on merit alone then a majority of students would be women. Many of the rest would be Asian (Indian, Chinese, etcetera). It is routine for colleges to accept white men while denying a place to better qualified women. Not surprisingly, I have never heard a conservative complain about this kind of ‘affirmative’ action policy. I guess it all depends on whose ox is being gored.
Thanks, Darren. You are right. I didn’t spell it out so succinctly as I thought you, David, might say it is wrong to discriminate against academically poor students, who will feel ‘hurt’ by being excluded.
Yesterday, the Head of Imperial College, London (5th best university in the world) admitted that four of his best five students this year are from Singapore. They still teach maths in Singapore. Here, English students accepted by Imperial have to have a ‘remedial year’, learning the basic maths and physics that they should have learnt in school, etc etc.
To retain academic excellence universities such as Oxford and Cambridge (and others in the Russell Group) require students to be of a suitable academic standard to undertake degree-level courses. The public schools (i.e. our private schools), although a tiny minority, generally produce better educated students than the vast majority of our state schools, which often avoid hard subjects for A levels, such as physics, maths, chemistry or languages. This is embarrassing for the Government which would like to force these universities to take many more state school pupils.
(This is rather a red herring to the main debate!)
I believe Francis is talking about students who REQUIRE basic remedial math and whose reading, writing and English is at, oh say, an 8th grade level.
Francis Phillips said: “In a related realization, our better universities are realizing that, as in the US, they will have to begin to raise their own funds in the future rather than be coerced by Government diktats on who they should accept as students.”
Francis, Which students are you talking about?
This is a reasonable survey of the confusion over here. It leads to absurd situations, such as the Home Secretary announcing two days ago in an inadvertent slip that the UK is ‘a secular democracy’, only to be corrected by a C of E spokesman, that ‘this isn’t true as we have an established Church.’ The later statement is right in theory, the former in practice.
I think the more the Government here slides away from the Christian principles that have, until the 1960s, underpinned the laws of the country the more the Church will come to realise that financial dependence will have to end - later rather than sooner.
In a related realisation, our better universities are realising that, as in the US, they will have to begin to raise their own funds in the future rather than be coerced by Government diktats on who they should accept as students.
Again, Francis, I’m not that familiar with English law. Catholic Charities of Boston faced a similar problem but with two important differences. First, Catholic Charities was placing children with gay couples until a few years ago. These were usually children who would never otherwise have been adopted. When Catholic Church stopped these placements it coincided with the mess the Boston church was in regarding child molesting. It seemed as if the Church’s new anti-gay fervor was intended to draw attention away from the trouble it was having controlling the child-molesting debacle. It didn’t ring true.
Second, the Church was taking State money to pay for their services. I you take State money you have to accept State rules and regulations. As I understand it, they could have continued to place children but they wouldn’t have been paid for it. I’m sure if that’s not right then someone will correct me. England is more confused. The lack of separation of church and state has left you with a host of problems. In England you find yourselves in the absurd position of using tax money to pay for radical Muslim schools that teach hatred of England and its values. I suppose that comes from calling your regular schools Church of England schools. I know Catholic schools in England are government subsidized. My in-laws jump through hoops to get their kids into the right Catholic school. But the system is a mess. It results in you paying teachers in some Muslim schools to teach their students to hate you. It seems like ecumenism gone mad. And I wonder if your government will have the courage to forbid an anti-gay curriculum in Muslim schools. I like our way better.
David is right: smacking isn’t assault - but tell that to our powerful Left-wing child ‘experts’ over here.
Persecution: overt persecution is what one sometimes reads in the papers in e.g. Pakistan, when the Christians’ churches are burned and their lives may be threatened.
Yet there is a more subtle (and growing) persecution of Christians in the UK: e.g.’we will invent a new ‘law’ that will put many of you Christians instantly outside it. If you don’t tow the line you will be either in court or out of business.’ This is the case with the new SORs - Sexual Orientation Regulations. Briefly, it means that Christian Adoption agencies which in the past have done sterling work placing difficult children with caring married couples, now have to be prepared to place these children with those in civil unions, even though this goes entirely against Christian teaching, good practice and common sense. As Jim Dobbin, a veteran Labour MP (and Catholic) said when yet another Adoption agency was forced to close rather than compromise on such a vital issue, ‘It is a tragedy...I don’t think there was any need for this legislation at all. It was forced through and was all done to avoid discrimination, but all it has done is to introduce discrimination against agencies that operate according to the principles of religious faith.’
There are, of course, any number of local authority adoption agencies to which people who don’t accept Christian teaching on marriage can apply.
David, Lines have to drawn somewhwere. You don`t have the right to yell “FIRE” in a crowded theater, we have libel and slander laws, you can`t incite riots. “Free speech” does not cover these forms of “expression”. If accused of such, you have a free and open trial; if violated, you can seek legal remedy. Being required to wear a seatbelt while operating a motor vehicle is no more of a “hardship” than carrying a license, keeping windows clean and viewing unrestricted and headlights working properly.
Darren, what you have outlined in your post is the scenario that will take every last freedom you have. The same argument can be used to limit what you eat, restrict the sports you participate in, take away your tobacco and eliminate private flying. In the interest of a peaceful society these very discussions we have here could be outlawed. In Canada they almost are.
This thread seems to have gone off course, but I want to respond to David Page`s last post anyhow.
I don’t know what the Mass. Seatbelt Law was exactly, but if it mandates the wearing of seatbelts, I’d be in favor.Driving is a privelage, not a right, as such, rules(uncomfortable as some may find them)need to be set.
If you don’t like the government protecting you from yourself, fine; but let`s say you have an accident and you fly out of your car and land on and injure someone; had you had your seatbelt on you would have remained in your automobile, suffered whatever injuries you might have, but not hurt anyone resulting from your ejection. Not only that, but your injuries most likely would be minimized, thus sparing
emergency and hospital personnel from helping others who perhaps don`t posess your sense of lassiez faire, macho derring do.
I would also add government has a duty, via the system of “checks and balances”, to protect “us” from “them”.
Francis Phillips said: “David, you made an understandable but wrong assumption about Conservatives; there is very little difference between them and Labour.”
I have to admit, Francis, I was surprised, not unpleasantly, by Mr. Jennings response.
I wasn’t being entirely serious with my remarks about ‘smacking’. It’s been my experience that the less you use that option the more effective it is. But I have more than once felt the need to intervene when I saw parents beating their children. There is a point when smacking becomes assault. Generally, I’m opposed to what you call the ‘Nanny’ state. I was active against the Massachusetts Seatbelt Law. We won that battle at the polls but, of course, it’s the insurance companies that really decide these things. My feeling is that the purpose of government is to protect us from each other, never to protect us from ourselves.
Francis said: “Every day there is a new case of persecution of Christians: decent good citizens who are neither Right-wing nor Left-wing, except in the narrow political sense.”
Francis, how do you define persecution?
David, you made an understandable but wrong assumption about Conservatives; there is very little difference between them and Labour. They are not equivalent to your ‘Right-wing’ Republicans. US politics seem healthier as there are genuine arguments/differences to be aired. Individual Tories might hold Christian values; but so do a few Labour politicians. Generally the Tories are trying not to be the ‘nasty’ Party, in order to gain power in 2 years’time. I can guess what your Derby correspondant’s reply was. To misquote Groucho Marx: I would not want to join any political party over here that would want me as a member.
FYC is not a campaign about smacking children, whatever their perceived orientation; it is (among other things) about telling our bossy Nanny State to stop interfering in the way responsible parents raise their children.
Your last question was about being an embattled minority, faced by a hostile majority. I don’t need to go to a Muslim country to experience this; it is enough to be part of the Christian minority in the UK, surrounded by the hugely hostile secularist majority who dominate Parliament and the media. Every day there is a new case of persecution of Christians: decent good citizens who are neither Right-wing nor Left-wing, except in the narrow political sense.
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