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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.
Again Jim said: “As a Californian I shake my head in disbelief as 4 judges on the State Supreme Court countermand the vote of the majority of Californians.”
Loving verses Virginia countermanded the will of the majority of Americans. Was it wrong for the court to find the way it did? That’s really the only question here. Can the majority take rights away from a minority? The question of why you would want to is one you’ll have to ask yourself. By the way, how did you vote on this question in 2000?
Homosexuals accept their condition because they are that ‘way’ for unknown reasons and we have to respect their sexuality and behavior. However what can’t be changed or accepted is to condone homosexual behavior as correct. Same-sex marriage in the context of marriage as an institution will not contribute anything to society. It will worsen it. Gays and Lesbians should find support that will help them cope with their sexuality.
David Wrote:
“Did you shake your head at Loving verses Virginia When anti-miscegenation laws were struck down? That ruling was also against the will of the majority of the people.”
David ... you assume far, far too much ... Catholic teaching has never been against interracial marriage. I’m beginning to wonder just how prejudiced you are. What you dislike is a rather English Protestant view of interracial marriage.
“I ask again, why do you think you have a dog in the gay marriage fight?”
I don’t have a dog in anyone’s fight. You seem to want to push this perspective down everyones throat who doesn’t agree with you. It’s a free country and I’m letting you know why you are in error. In response you set up straw dogs with my name on them??
“Why do you think you have veto power over the rights of your neighbors?”
David why put words in other peoples mouths to pose your argument? No, I don’t have any veto power, but I do wonder what rights of my neighbors you allude to. Am I left again to assume that you might be referring to homosexual marriage as a right?
“You want to frame the argument to be about whether the persecuted deserve to be persecuted. The argument is really about why the persecutors need to persecute.”
Here we go again ... let’s see ... now you are calling me a persecutor? Unless your intent is just to offend; you will have to connect more of the dots in the picture you are wanting to draw.
I’m taken back to a comment you made quite some time back about not being able to discuss important issues with Christians because you couldn’t figure out what they believed (a paraphrase I’m sure). It’s rather uncanny that rather than “ask” you “tell” Christians what they believe and then proceed to propagandize on some liberal agenda you want to wave in people’s faces.
David, what a suprise to find you on this particular post!
If I seemed rambling it’s because I had alot to say and i was worried about going over the character limit.
My point? Justifying homosexuality by making comparisons to racial prejudice is invalid.
Actually the post is the opposite of Eugenics. I’m not talking about mating people like racehorses.(I find even that a disturbing practice) Facistic,state-sponsered or socially mandated mating practices are wrong.("gays" cannot mate, no matter how hard they try.)Lack of “new blood” in a society can bring disease. Tay-sachs(?) and sickle cell anemia are two examples.
In the end, we’re not talking about predjudice; we’re talking about whether the state can command the people to accept something that counters thousands of years of acquired
wisdom and more importantly common sense.
Darren, your post seems a bit rambling. What’s your point? Your right, there is no religious reference but the post sound suspiciously like Eugenics. I think, in the end, we’re just talking about prejudice.
Efforts to legitimize homosexual behavior are so often based on comparisons to race.Of course, this is an illegitimate comparison. Race, physical characteristics, are traits passed down through of people who generally(till modern times) stayed in one geographical area. If, as is generally believed, the first humans emerged out of Africa, our first true ancestors may well have closely resembled the modern Negro.
As the humans began to spread throughout the earth they needed to adapt to different terrain and weather conditions.
They also had to develop new ways to feed themselves.To survive;because that is what living organisms do.That’s what WE are.For as long as we know there have been certian behaviors, without scientific research as we know it, that were forbidden or at least derided as wrong.This occured as tribes,etc. got bigger.Incest and in-breeding for instance, which produce physically and mentally weak(NOT morally speaking;it’s not thier fault)children.Society`s that permitted these type activities didn’t last very long.
Bringing sets of genes togeather strengthens humanity.Get a microscope and watch as two sets of MATURE cells come togeather and split,on and on, branching out.Even viruses, such as HIV, can become quite virulent if we humans don’t follow hygienic “lifestyles”.
How does homosexuality or “gay” fit in to all this? IT DOESN’T. It’s an unclean PRACTICE that contributes nothing to the vitality of the species. In fact, it does quite the opposite.Certainly not by genetics, but by spreading disease and diminishing the masculinity and femininity that reproduce the species.
Therefore, the state, has a legitimate interest, for the benefit of the people to(AT LEAST) NOT encourage this behavior. Not one religious reference in there.
Jim said: “your prediction of what might be a reality 20 or 30 years down the road has all the appearance of an angry man shaking his fist at God.”
Actually, I was shaking my fist at bigots.
Jim said: “Contrary to what you say I think that time is quite decidedly on the side of heterosexual marriage.”
I never said straight marriage would go away. It’s not an either/or question. Pretending it is cheapens your argument.
Jim said: “As a Californian I shake my head in disbelief as 4 judges on the State Supreme Court countermand the vote of the majority of Californians.”
Did you shake your head at Loving verses Virginia When anti-miscegenation laws were struck down? That ruling was also against the will of the majority of the people. Who, now, says publicly that they are against interracial marriage? I ask again, why do you think you have a dog in the gay marriage fight? Why do you think you have veto power over the rights of your neighbors? Why do you want to? You want to frame the argument to be about whether the persecuted deserve to be persecuted. The argument is really about why the persecutors need to persecute.
Not only is homosexual “marriage” a sickening concept, the people of California [of which I am one] voted overwhelmingly to outlaw such abnormal behavior. Yet FOUR Democratic Party judges abused their power and tossed out our overwhelming mandate opposing this sick deed. The United States was founded as a nation by and for the people, but we no longer have any say.
David despite your dismissive approach to those who might disagree with you on the subject of homosexual marriage: your prediction of what might be a reality 20 or 30 years down the road has all the appearance of an angry man shaking his fist at God.
“… male and female He created them. And He blessed them saying: Increase and multiply ...” I know that you have heard this, and the reality is that we all walk in the presence or shadow of those who have gone before us. Heterosexual marriage is the reality that has brought us to where we are. Contrary to what you say I think that time is quite decidedly on the side of heterosexual marriage.
David is it just me ... or did you predict just one sentence after you wrote you could not predict?
As a Californian I shake my head in disbelief as 4 judges on the State Supreme Court countermand the vote of the majority of Californians.
Thanks for your informative article Maggie. I will visit your website.
Darren Hall said: “Perhaps now we can have a no-holds barred, wide open discussion on sexuality; everything on the table and get these issues SETTLED.”
Hi, Darren. In Massachusetts we didn’t get to have that discussion because we won in the legislature. One thing we counted on, were we forced to have that discussion, is that our opponents would go to far. From the tenor of your post, I think that’s exactly what will happen in California. I can’t predict what the outcome will be. Your guys won eight years ago, but eight years is a long time. The gay rights movement has the momentum. Even if you win in November, you will lose 10 or 20 years from now. In 10 or 20 years people who are now vociferously anti-gay will deny, in public, that they were ever any such thing.
I visited Maggie Gallagher’s ‘National Organization For Marriage’ web site and it is the same hateful, mean-spirited nonsense one usually finds on these sites. It tells us much more about Maggie Gallagher than it does about gay people. Where does this obsession come from? I think it would be good if some of these anti-gay people would stop to ask themselves why they think they have a dog in this fight, because from the outside looking in it just looks like mean people being mean.
Marvellous article. Thank you, Maggie--especially, for the many OTHER court citations. I blinked like a non-functional traffic light when I saw and heard, on delayed Lehrer Down Under, the celebrations of the CA bigots who call themselves liberated.
In addition to the fact that marriage between a man and a woman is a compelling interest for the state, the unjust action of justices who act like dictators needs to be checked for other reasons, such as freedom of speech. When the nature of marriage is distorted by the courts religious institutions such as the Catholic Church are one step closer to being sued for supposed “hate speech” and deprived of their tax exempt status in the service of common good because of “alleged discrimination” towards same-sex couples.
One good thing may come out of this putrid example of judicial activism and usurping of the pwer of the people.
Perhaps now we can have a no-holds barred, wide open discussion on sexuality; everything on the table and get these issues SETTLED.
I have yet to see or hear ONE(!)argument that can validate homosexuality as anything more than a personal, sexual proclivity. We should give legal and social recognition, approval and promotion to such things without serious debate?
On what basis? Because one or a few people say they “feel” that way? No.
Even “heterosexuality” is not a true characteristic. There is more to the so-called “tradional"/"stereotypical" man-woman relationship than sexual attraction and desire. Hugh Hefner and every skirt-chaser and every tramp are examples of “straight” people who have some need to make an impression on everyone with thier sexuality. These are not desirable, socially good behaviors. You can’t legally STOP it, but you
don’t give it a legal and social go-ahead either.
Leaving out religious and moral arguments you still can’t justify “gay”. It was SEXUAL REPRODUCTION, developed through evolution, that raised life on this earth out of the primordial ooze.Two sexes is who we are, what we humans are.
We are male and female, man and woman.The “state”, as empowered by the people, has an obligation to promote only what is good for the general welfare.
Well, I suppose we’ll see what happens.
-wink-
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