California court may not have the last word on marriage

Friends Maya Scott-Chung, left, and COLAGE executive director Beth Teper, both from Oakland, are all smiles after hearing the State Supreme Court's decision in favor of same-sex marriages outside the California Supreme Court House in San Francisco, Calif., on Thursday May 15, 2008. (Ray Chavez/The Oakland Tribune)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

For a summary of recent court rulings see "American Courts on Marriage: Is Marriage Discriminatory?", by Joshua Baker.


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