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TechnoratiCalifornia 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, I addressed my quest to the local Derby Conservative club. I assume they will be friendlier to your point of view and would be less likely to stonewall me. We’ll see.
I went to the Family and Youth Concern site you mentioned above. I couldn’t find any specific reference to the Derby case but I saw similar arguments. It reminded me of right wing Christian sites in America. They have the same view on parental ‘smacking’ rights, although it’s not as big in America. What’s that about? I’ve never been offended by watching parents not smack their kids. Should they smack their kids for being gay? In America the conservative Mantra is God, guns and gays. In England it seems to be God, gays, and the right to smack your kids.
Francis, while I was writing to you I got an E-mail from Harvey Jennings, Deputy Leader of the Conservative Group in Derby. Without being specific, he has indicated that he is in support of of the Derby City Council’s policy. Because it was addressed to me I don’t feel comfortable posting his reply here, but if you give me a way to do it I will send it to you. You can do that and maintain your privacy by creating a new E-mail address and then canceling it after I send you the letter.
Francis said: “I would not feel ‘discriminated against’ by a Muslim hotel that obeyed halal laws, asked women to veil in public and said there would be public prayers to Allah 5 times a day, starting at dawn.”
How would you feel as a minority Christian in a predominantly Muslim country?
I think it is our country that has got ‘carried away’; not just the bureaucrats at Derby City Council. I would be interested to know if they reply to you. You will find some more information from http://www.famyouth.org.uk I have just made out a bank standing order to them as I believe their work is so worthwhile.
Comparing this debate with pro-life principles was not casuistry; I was trying to think of a fundamental principle on which we could agree (that abortion is wrong) and explain why those who believe marriage can only be between a man and a woman see this as a similar fundamental principle.
I would not feel ‘discriminated against’ by a Muslim hotel that obeyed halal laws, asked women to veil in public and said there would be public prayers to Allah 5 times a day, starting at dawn. I simply wouldn’t choose to stay there.
It is one thing to carelessly break a law; it is another thing to take a public stand against it on principle, in order to test what the law really means. This is the case in the UK with the (badly drafted) ban on hunting. Many people have ‘broken’ this law in order to test it. They have largely shown the law in this case to be an ass.
Francis, I’m not sure how things work in the UK. It sounds to me like the Derby council got a little carried away. I’m going to follow up with the Derby council, and if it is as the article you read says it is then I will write a letter to them, for all the good that will do. I won’t comment further until I learn more.
The Bed and Breakfast question is less straightforward. I could leave it alone if you were just talking about places with live-in proprietors. I still wouldn’t approve of it. You indicated that you thought large hotel chains should have the same right and I think you must see how that could go bad in a hurry. Who would Muslim owned chains be allowed to discriminate against? By the way, I think comparing the renting of hotel rooms with the killing of a fetus is a bit of a stretch.
In my misspent youth we realized that breaking the law for moral reasons required accepting the consequences. Otherwise it was just law breaking.
David said, ‘using their position to deny lawful services to gay people’. Are pro-life doctors right or wrong to use their position to deny lawful services when they refuse to perform abortions, even though abortions have been legal in the UK since 1967? Many of these doctors are not Christian; it is that they don’t believe deliberately killing an unborn child is what medicine is about.
I found the information about the couple fostering children. Though foster carers since 1996, with an unblemished record of caring for 18 children, they have now been told by Derby City Council that “applicants are required to signify their approval of a homosexual lifestyle as a condition of being approved as foster carers.’
The problem is not the Christianity of this couple, or the registrar’s Christianity; the problem is the law. Until the law changed, such people were never in conflict with it, as a Christian understanding of marriage coincided with a similar (ancient, English) legal assumption. They did not take on their jobs as Christians, but as ordinary citizens within the law. The ‘law’ has now let them down.
Darren Hall said: “The Mass. legislature, bought and paid for by “gay” activists, fights any attempt for a referendum on a state constitutional amendment defining marriage.”
In order to amend the Constitution of the State of Massachusetts, the opponents of gay marriage had to get a certain number of signatures, which they did. It then had to be sent forward by only 25% of a joint session (Constitutional Convention) of Senators and Representatives in two successive years. Only 25% was needed, 50 votes out of 200 in a Catholic state. In the first session the opponents of gay marriage got 60 votes, enough to send the amendment forward to the next congressional session. This first session was a lame duck session and Romney was still governor. some of the anti-gay Legislators had already lost their bids for reelection. A few days later Deval Patrick become governor. He had made it clear during his campaign that he was a strong supporter of gay rights, including gay marriage. He won by a landslide. At the next Constitutional Convention the vote was taken again. This time the anti-gay legislators only numbered 44 out of 200. No legislator in Massachusetts lost his seat for supporting gay marriage. I was at both Constitutional Conventions. The second one, when we finally won, was one of the most extraordinary events I have ever witnessed. If you wish to see it go to YouTube and type in ‘Massachusetts Constitutional Convention-The Vote’
Questioner said: “The likes of the people on Stormfront say that interracial relationships violate nature and biology and society. How would I answer those people?”
It’s probably best not to talk to them at all. But if you must you could say, about violating nature and biology, if you can make babies and those babies can grow up and make more babies, your the same species. As far as violating society is concerned, I’m sure Stormfront knows all about that.
I don’t think race, as we understand it, is mentioned in either the Old or New Testament. Slavery gets plenty of play in both books.
Re: the Questioner’s post...if you were the DEVIL`s advocate you would agree with them.
Re: David Page`s post 6/1/08 3:54 am..."people using their positions to deny lawful services to gay people.” This only works if “gay” were an actual legal,social and natural identity. What a bed&breakfast;would object to is the behavior their customers would be naturally assumed to engage in. Wedding photographers take wedding pictures; two grooms or two brides do not make a wedding. (The Mass. legislature,
bought and paid for by “gay” activists, fights any attempt for a referendum on a state constitutional amendment defining marriage.)
I’ll have to play Devil’s Advocate (that is, an old office in the Catholic Church who presented evidence against someone’s canonization)for a moment. The likes of the people on Stormfront say that interracial relationships violate nature and biology and society. How would I answer those people?
Francis Phillips said: “an emotionally-weighted, imaginary scenario, heavy with certain assumptions and implications, must not distract us from the argument of the article: that a same-sex civil union is not equivalent to marriage and should not be regarded as such by law.”
Do hard cases make bad law? I know that a bad precedent can lead to bad court rulings. Once you establish a precedent allowing bias in public accommodation, or public anything, then legal bias is established and everything else is just arguing over the details. Once the camel’s nose is under the tent then the entire structure is in danger.
This particular discussion was not primarily about whether or not gay marriage was equivalent to straight marriage. It was about people using their positions to deny lawful services to gay people. You brought up these cases about people who don’t feel they can do their jobs because of their Christian beliefs. You presented cases which were ‘heavy with assumptions and implications’. You can’t now say that the personal should not distract us from a dispassionate argument about the relative merits of gay marriage. Everything is personal. It would seem to me that that statement should be central for every Christian. (And every Existentialist as well). Everything is personal and we’re responsible for all our actions. If you do something to hurt someone, (and I’m not talking about you particularly. I don’t know you) you can’t say that it wasn’t personal. It always is. Actually, Francis, I believe that you, Christian or not, would err on the side of kindness.
The recognition of man-woman sexual partnership and marriage is based, not just on religious beliefs, but nature itself.
Is civil law going to legally recognize everyone’s sexual quirks and tastes?
Polygamy was outlawed in the state of Utah in the 1800`s.
People can have orgies and alternate living arrangements if they like, but no legal or social recognition for thier self-proclaimed “identity” and “lifesyle”. Such activities can produce deformed or retarded children(NOT judging the children!), unwanted pregnancies and children and can spread disease. Not a religious reason there to withhold official recognition.
The main point about “gay marriage” is whether “gay” is a behavior or a natural attribute. There is no proof that homosexuality trait; all evidence points to a mental and/or emotional abberation. For this we should turn society upsidedown?
Francis, I would hope so too.
To answer you, David, we all know that hard cases make bad law. And an emotionally-weighted, imaginary scenario, heavy with certain assumptions and implications, must not distract us from the argument of the article: that a same-sex civil union is not equivalent to marriage and should not be regarded as such by law.
But to respond specifically to the question asked: I hope that, under the guidance of the Holy Spirit, I would treat them as a Christian should.
Francis Phillips (and others),
Are you saying that _all_ people should be able to refrain from providing services to others for reasons of religion, or are you saying that _your_ religion should be singled out for special protections?
It’s one thing to argue in the abstract, but it sounds an awful lot like you are saying, “People who think and worship like me deserve special rights over people who don’t think and worship like me.”
For example, if a person’s religion forbids “mixing of races,” would you also contend that person should have the right to refrain from providing services (wedding services, hotel beds, etc.) Of course you disagree with that person’s views--so do I--but we’re talking about what civil law should be. Same-sex marriages are not against every religion, but they are against your own.
So, are we talking about civil laws? Or are we saying that your religion deserves special rights, because it is the One True Faith and everyone else is wrong?
Racial bigotry and “homophobia” can only be compared reasonably if there is violence toward or total lack of regard for a “gay” individuals personhood. Otherwise, so-called “homophobia”, real or imagined, cannot be put in the same category as racial bigotry. Even if it “hurts as much”.
Francis’ beliefs are based on common sense, basic human physiology and long-held religious teaching that guides human relations above carnal lust.
I still have yet to see any evidence what-so-ever that “homosexuality” is a natural attribute that merits any comparison with race.
Francis Phillips said: “Speaking as someone of Irish descent, I apologize for the bigotry of my fellow-countrymen 40 years ago. That was sheer racial bigotry. But as several postings for this article have made clear in longer arguments, those like myself who believe that marriage can only be between a man and a woman, are not thereby being ‘bigoted’ or ‘homophobic’ against people of SSA.”
I’ll bet it hurts just as much. Would you turn them away if they had children with them?
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