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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.
My pointing out your typo was not meant as a ‘cheap shot’. I know it was a natural error and that you are very happily married, as you have indicated this in other postings. But you did accuse an earlier posting here of allowing his ‘anger’ to affect his typing. Let’s just accept that sometimes our fingers slip; no suppressed emotion involved. (But ‘40 tears’ does sound rather poetic in its way; and marriage is made up of sorrows as well as joys.)
Up till recently English law (which, developing over 1500 years, has had a close relationship with Christian belief) assumed marriage to be between a man and a woman; to change this (with no debate and within a decade) is very fundamental in many people’s eyes.
I can’t supply more details of the foster parents’ case, as I did not cut out the article at the time. It simply illustrates that decent, good people, who happen to have a Christian understanding of sex and marriage, are being openly persecuted by our increasingly aggressive secularist society in the UK.
Speaking as someone of Irish descent, I apologise 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. Pro-lifers do not condemn women who have abortions; but they also know that abortions are wrong.
Francis Phillips said: “PS re your own marriage; you wrote you had been married ‘forty tears’. Freudian slip, eh?”
Cheap shot, Francis. The Y and the T are right next to each other on the keyboard.
Francis Phillips said: “You say that the registrar in question is refusing to do her job. She is not. For 15 years she registered civil marriages - when the law, in keeping with ancient, fundamental laws of life, defined marriage as the union of a man and a woman. Now the law is redefining marriage; this is not simply changing the terms of this lady’s contract; it is to change the fundamental nature of her job.”
Then she’s refusing to do her job or the job has become obsolete. I don’t think English civil laws mention ‘ancient, fundamental laws of life’.
Francis Phillips said: “The foster parents are being asked to endorse same-sex unions as equivalent to marriage in conversations with possible foster-children.”
Could you possibly supply a source for this comment? I’m still a little unclear as to what the foster parents are being asked to do.
Francis Phillips said: “If I, as a Christian, ran a private chain of hotels, I would make it a policy to refuse a double bed to people of SSA and would put this politely in my brochure and policy statement - so that those of SSA could go to another hotel chain without being ‘offended’.”
I’m sorry to hear that. My wife and I went to Ireland on our Honeymoon and a hotel in Cork refused to allow us to stay a second night after they found out we were an interracial couple. It was very unpleasant.
P.S. I’ve checked for ‘Freudian slips’. Be sure to tell me if I missed any.
You say that the registrar in question is refusing to do her job. She is not. For 15 years she registered civil marriages - when the law, in keeping with ancient, fundamental laws of life, defined marriage as the union of a man and a woman. Now the law is redefining marriage; this is not simply changing the terms of this lady’s contract; it is to change the fundamental nature of her job - just as it would change the fundamental nature of a doctor’s job if, having trained to protect life and bring healing, the law demanded he perform abortions/euthanasia. You would refuse to do this as a doctor, because it would change the meaning of being a doctor; registering same-sex unions does the same for this registrar.
The foster parents are being asked to endorse same-sex unions as equivalent to marriage in conversations with possible foster-children. This they refuse to do. (in the past they would never have raised the question with their foster-children; some politically-correct social services departments now ‘weed out’ Christian foster parents in this way.)
About the Mormon hotel chain. If I, as a Christian, ran a private chain of hotels, I would make it a policy to refuse a double bed to people of SSA and would put this politely in my brochure and policy statement - so that those of SSA could go to another hotel chain without being ‘offended’. (I might also say ‘No smoking in my hotels’ - so that smokers would also go elsewhere.)
PS re your own marriage; you wrote you had been married ‘forty tears’. Freudian slip, eh?
Francis, I wouldn’t want any medical professional, Christian or otherwise, to be forced to perform an abortion. If I were a doctor I would also refuse to do it.
First let me say that I really don’t care if the registrar you mentioned performs gay marriages or not. As I understand it, they don’t do it for free. Someone else will fill the breach. If I were the woman’s boss I would try to accommodate her, but she is refusing to do her job.
We were in England recently for my niece’s wedding. It was a civil marriage at the place where the reception was held. One of the passages that was to be read during the wedding had two references to God. I was told that God can’t be mentioned during a civil marriage ceremony in England. The passages had to be altered to remove the God references. The point is, the registrar you mentioned wasn’t being asked to perform a religious ceremony.
Francis Phillips said: “There are cases of Christian foster-parents being banned from their vital vocation because they refuse to tell their foster children that homosexuality is just another lifestyle.”
I’d need to know more about that. Are we talking about foster-parents being told to advocate homosexuality or are they being told to stop condemning it? I’m not deciding either way but more information about these incidents would be helpful.
Francis, in the United States the Marriott hotel chain is owned by Mormons. Should they be allowed to refuse rooms to gay couples? Would that be OK with you? If you answer that, then I will answer your question about the bed-and-breakfast.
David Page says, ‘You just go about your business and let other people go about theirs.’ Unfortunately, laws make that laissez-faire attitude impossible. In the UK, a Christian registrar of births, deaths and marriages has been suspended because, in conscience, she cannot officiate at civil unions. Her livelihood is on the line, as is that of every Christian registrar in the UK. She is appealing and everyone is wondering what way ‘the law’ will go. There are cases of Christian foster-parents being banned from their vital vocation because they refuse to tell their foster children that homosexuality is just another lifestyle. A Christian who ran a Bed and Breakfast was taken to court by a homosexual couple because he refused to give them a double bed.
David Page would not want Christian doctors and nurses forced in law to perform abortions; would he agree that there should be a similar conscience clause in cases such as I have cited above?
Darren Hall said: “The “gay” movement is merely an out growth of the so -called “sexual revolution”. I think you’re giving “gays” too much credit.”
If it’s not that important, why all the fuss?
Darren Hall said: “As to my point about marriage and copulation; YOU missed MY point. Love indeed can raise sexual relations beyond copulation, however, in order to form societies, cohesive relationships we share and recognize, we have rites, ceremonies and laws. Marriage the moral, social and legal recognition of that unique relationship between male and female that raises us to become men and women; ladies and gentlemen. It’s a personal and social discipline.”
You make marriage sound like merely a chore.
re: David Page post 5/23/08 12:37 pm
I did not miss your point, I think perhaps you misinterpretated it yourself. Marriage is in trouble becauae people are not perfect. Changes in society, good or bad, bring new challenges. The “pill”, “sex” education” can be and are mis-used. Easier travel and communication make “cheating” easier to cover(at least for a while, look at Rep.Vito Fossela from N.Y.)and the internet brings porn and prostitution right into private homes. Also, greater scientific research has allowed for religious beliefs and morality to be questioned. That is, by itself, NOT a bad thing, passionate disputes are a part of life.
The “gay” movement is merely an out growth of the so -called “sexual revolution”. I think you’re giving “gays” too much credit.
As to my point about marriage and copulation; YOU missed MY point. Love indeed can raise sexual relations beyond copulation, however, in order to form societies, cohesive relationships we share and recognize, we have rites, ceremonies and laws. Marriage the moral, social and legal recognition of that unique relationship between male and female that raises us to become men and women; ladies and gentlemen. It’s a personal and social discipline.
David Page, whether or not the ‘problems’ with marraige started well before gay marriages took place doesn’t mean that now gay marriages are OK, you perhaps never implied that but looking at that comment solely by itself above mine that’s the impression I got, but then again I didn’t read all the pages before.
I find it hard to grasp what you exactly meant by problems with marriage. I don’t think you can start categorizing problems of marriage from the early days saying this is where the problems started.
I firmly believe that in every marriage it is blessed and sustained by God from the religious point of view (Catholics or non-Catholics). If its not sustained it is because of human frailty and effects of sin. Therefore Same-sex marriage is not a ‘marriage’. Maybe they can call it another name?
Darren said: “The nature of marriage has never been challenged till now. It has always been male-female. The suffragettes never wished to change that.(A very weak argument by that particular poster.)”
Darren, you’ve missed my point. I was talking about why marriage was failing before gay marriage. If homosexuality didn’t exist marriage would be in just as much trouble.
Darren said: “The purpose of marriage is to honor the idea of raising sexual relations above mere copulation.”
Love raises sexual relations above mere copulation.
The nature of marriage has never been challenged till now. It has always been male-female. The suffragettes never wished to change that.(A very weak argument by that particular poster.)The sexual relationship between male and female is a unique(ONE-of-a-kind)relationship. Mentally, emotionally, spiritually(if you so believe) and no doubt, PHYSICALLY. Two men or two women CANNOT unite this way.
The only thing that can compare to this is a baby in it’s mother’s womb...and that is a direct result of the male-female union. Yet we are to believe all that is equal to whatever sexual act(s) one identifies with.
No one can deny the physical and sexual complementarity between the TWO sexes. Get an anatomy book and look at the section dealing with sex organs.
Supporters of “alternate lifestyles” say that respecting this biological FACT means nothing. They compare sodomy to this.
The purpose of marriage is to honor the idea of raising sexual relations above mere copulation. If sex is mainly for pleasure, fun or even “just” love, why should any man, by law, have to take any responsibility for the result of this mere pleasurable biological function? Why should not be able to “opt out”?
Recognition of “gay marriage” will not just devalue marriage, it will devalue sexuality, masculinity, femininity and humanity itself.It would also be a basphemous act.
As for the photographers in Arizona, they take WEDDING pictures. Two men or two women or any multiple there of do NOT a wedding make.
“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?”
Exactly, the constitution can’t be based on ever changing paradigms and social trends. Approving same sex marriages essentially makes the US constitution or any other constitution a joke where it is amended just because a majority vote between judges takes place, when it comes to the marriage issue it should be a federal case. It is already a joke anyways, definitions of marriages varying across states.
As is the problem with today’s society, relativism. Bah.
Peter, the structure of marriage was altered before anyone ever considered gay marriage. The real turning point was women’s suffrage. Once women had the right to vote they had the power to begin to demand equality. It is a necessary and good thing but one of the unanticipated consequences was the weakening of ‘traditional marriage’. When is the last time you heard a women utter the extra word ‘obey’ during a marriage ceremony? Once women weren’t forced by circumstance to remain in bad marriages they stopped doing so. I don’t know what the solution is. It’s not possible to return to chattel marriage, to women accepting the inferior role. Having said that, my marriage of forty tears is doing just fine. It is, of course, not based on the old model. One thing is clear, gay marriage is not the problem. The problem was their before gay marriage was on the horizon.
Peter Knobloch, we agree on some things, but there are a few key issues on which we disagree. To wit:
“Children will suffer the most from the further degradation of the structure we have known as marriage.”
You seem to take it on faith that allowing more consenting adult couples (who want to get married) to marry will somehow contribute to the “further degradation” of marriage. I disagree; it seems pretty evident that allowing devoted couples to marry will strengthen the institution.
Additionally, since children are already being raised by same-sex couples, if you are genuinely interested in the welfare of children, then you must support the right of the couples raising them to get married, because we both agree that children being raised by a married couple are better off than children being raised by an unmarried couple.
Further, some percentage of the children who are born today will be gay. The commonly-cited statistic is “10%,” but depending on how you define it, studies have indicated that the percentage is anywhere from 2% to 15%, possibly with different percentages for men and women.
These gay children will be better off if, when puberty hits and they realize their sexual orientation, they also know that they can choose committed, longterm married relationships. It is in the state’s best interest to encourage committed, longterm, married relationships for gay persons, instead of promiscuity or non-committed relationships.
“We must do all that we can to strengthen and uphold the institution of marriage.”
I agree with this, but somehow you feel that fighting against marriage is a good way to uphold the institution. I wholeheartedly disagree, and that is why I fight for marriage.
“A “lesbian couple” wanted to hire them to to make photos of
their “wedding” or “commitment ceremony”. The photographers
refused, they only do WEDDING(WEDDING!) pictures.”
But I think my point still stands-- it would not have been legal in the state of California to refuse to serve those two women, nor would it have been legal to refuse to serve a man and woman having a non-Christian wedding, even before the California Supreme Court decision. So your critique was imprecise.
Regardless, it sounds like the claim you are making is that people should be able to abstain from providing a commercial service to someone based on their own religious beliefs. That’s a fine position to hold, and I’m sure you’re in good company. But it’s only a fair position if you hold that position in the abstract (that is, people should always be able to abstain from providing a commercial service based on their religious views of their customers.) So, for example, people whose religious beliefs proscribe mixed-race marriage should be able to deny services to mixed-race couples, etc.
If you’re only arguing that people whose religious beliefs are the same as yours should enjoy these special exemptions, then you’re really arguing that the state should treat your religion as special. I disagree with that idea; the state should not be in the business of determining which religion is “correct,” even though some religions believe odious things.
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