California’s Gay Marriage Decision
The California Supreme Court has held that the state must recognize same-sex marriages. The full opinion is available here (pdf). The question before the court was whether the failure to designate the relationship of same-sex couples as a “marriage”, as opposed to a “domestic partnership,” violates the California Constitution. Thus, the biggest issue is not a matter of benefits or rights, which in California are virtually identical for domestic partners and marriage couples. Instead, the case was simply over state recognition of homosexuals by allowing them to use the name “marriage.”
The California high court came to its conclusion through a long analysis, but to boil it down in an admittedly simple way, the court found that the “right to marry” is a fundamental right and any limits on it must be reviewed under strict scrutiny. As the lawyerly readers will recognize, “strict scrutiny” is a specific legal term that means the limits must be narrowly tailored to a compelling state interest.
This strict scrutiny issue does interest me, and is central to the decision, but of particular interest to me is that the California Supreme Court continued to uphold discrimination against incestual and polygamist couples. Why should homosexuals receive superior rights to marriage than polygamist relationships? The majority gives lip service to this contradiction, but only vaguely responds that “the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment” (p. 79).
Here you can begin to see the dangerous path down which the court travels. In its own wisdom and moral superiority, the California Supreme Court determined that modern community values, as expressed through the legislature, are justified in banning polygamous and incestuous marriages, but not justified in banning homosexual ones. These are precisely the sort of policy decisions and assessments that are best left to an elected public body like the legislature. Indeed, as originalists argue, the constitution mandates it.
For social conservatives (e.g., Christians) who are uneasy with California’s decision, the experience should reinforce the notion that an institution as important - and so rooted in religious faiths - as marriage should not be left to the whims of a secular democracy or judicial system. This is why beloved Christian author C.S. Lewis wrote the following:
There ought to be two distinct kinds of marriage: one governed by the State with rules enforced on all citizens, the other governed by the Church with rules enforced by her on her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not.
I don’t believe for one moment that American Christians are ready for such a large leap. For decades Christians have worked to tear down the great “wall of separation” between church and state. Given time, with more and more decision’s like California’s, more Christians will come to see that the wall of separation was intended to work both ways. But will there be a wall left at all?
The opinion is based solely on California law, and not federal law, making it unavailable for review by the U.S. Supreme Court. However, a state constitutional amendment on the issue will likely be on the ballot this November. The battle is not over.
Why do you think only “christians” object to this?
The common law definition of marriage long predates Christianity, or Judism for that matter…and one is hard put to find acceptance of homosexual marriage in non Christian Asia…or in African tribes.
If common law and religious precepts are the way that societies encode thousands of years of human experience, then maybe the judges should try to figure out why.
One hint is that it has a biological basis. Another hint is that, outside the nanny state, it is only relatives and marriage that allows the sick, elderly, children etc. to be cared for.
As for polygamy ..at least that presupposes chastity outside of marriage, and family ties are kept alive. It is hell for the women involved, but in poor countries where the alternative is prostitution or destitution, it is the least of many evils.
Easy divorce has already destroyed marriage…Homosexual marriage, like “open marriage”, too often is combined with promiscuity…at least for men…so why marry at all? For tax breaks?
Why do you think only “christians” object to this?
I don’t, nor do I suggest that.
So the next question is will it be legal for two gay sisters to marry.
Sounds silly, but after today, who knows.
Why marry at all?
I agree with you, tioedong, that easy divorce has already destroyed marriage but I think our country’s problems with marriage are rooted deeper.
A great deal of immoral activity in non-married relationships has become a popular trend. Shows like ‘Sex and the City’laugh at the idea of marriage, view interpersonal, romantic relationships as a joke, and kill the strength of love in an attempt to liberate female sexuality. Male-Female relationships have lost the respect necessary for healthy marriages, healthy child rearing and the media is capitalizing on it.
With this generation’s wants and expectations towards male-female relationships in general, it is interesting to hear the dismissal of the possible righteous intentions in gay marriage. It is the gay community that is asking society to let them marry for love and companionship while the straight community is using marriage as a tool for family acceptance (following traditional, Judeo-Christian values) and economic benefits.
So, why might Christian’s object gay marriage? Maybe because it challenges their moral supremacy because the proper intention for marriage (love, companionship, family) is seen more in gay couples than the today’s Adam and Eve.
So the next question is will it be legal for two gay sisters to marry.
Sounds silly, but after today, who knows.
Not as silly as you might think. California’s Family Code only states that marriages between brothers and sisters are void, and says nothing about a marriage of two brothers or two sisters. It also specifically bans only uncle-niece and aunt-nephew marriages, and doesn’t include uncle-nephew or aunt-niece. At the very least, until a new statute it passed, such incestual same-sex marriages might be considered presumably valid.
But if they were subsequently banned, the statute itself might be called into question. The genetics related to the children of incestuous marriages is one of the state’s chief interests in banning incest, but inbred offspring is obviously an impossibility with same-sex incest. So what then is the state’s compelling interest in a ban? That it’s creepy? What argument could be advanced in favor of that ban that the California court didn’t shoot down in this case?
And if the same-sex portions of the incestuous marriage were declared unconstitutional for the lack of a compelling state interest, could the opposite-sex portions then survive a discrimination challenge? Would the California court be willing to say that a man has a state constitutional right to marry his brother, but it’s a felony to marry his sister?
I thought Hamburger’s book destroyed, for thinking people, that wall of separation red herring. It is an important work and those of a lawyerly mien ought to be familiar with it.
the “right to marry” is a fundamental right
How can something be a right if it requires a license?
I have long disagreed respectfully with Josh’s “separatist” stance on Christian vs. secular marriage, insofar as it implies that Christians’ values shouldn’t affect the basic structure of their society. In fact, while the primary meaning of being “salt and light” in society is to evangelize people on a personal basis, I believe it also includes opposing things like state lotteries and casinos, prostitution, gay marriage, and polygamy.
Also, I doubt that C.S. Lewis had gay marriage in mind when he endorsed “two distinct kinds of marriage.” Furthermore, since there are now denominations which endorse gay marriage, some gay couples would be able to claim that they *are* married “in a Christian sense.”
How can something be a right if it requires a license?
You have to register to vote.
To be fair, I wouldnt call mariage a fundamental right, but many rights require licenses.
Foltz,
Apples and oranges. The sole justification for voter registration is fraud prevention.
The institution of marriage once was rooted in the Christian faith, but isn’t any more. It is a mostly secular event that has little connection to either the church or to Christ. An aside to some wedding directors: please quit telling me that the communion table needs to be moved to accomodate your decorations. George Barna has reported that “divorce rates among conservative Christians were significantly higher than for other faith groups, and much higher than Atheists and Agnostics experience.”
It should be noted that 3 of the 4 deciding justices were appointed by Republicans. Werdegar and George are Wilson appointees and Kennard is a Deukmejian appointee.
This is highly reminiscent of when the U.S. Supreme Court heard Planned Parenthood v. Casey and upheld Roe by a 5-4 decision. The 5 deciding justices were ALL Republican appointees.
And yet Republicans will STILL insist that we need to vote for McCain in order to get good justices on the bench.
The odds of Obama and Hillary appointing strict constructionists are zero-point-zero. McCain’s odds are greater than that - how much, I do not know.
If a California governnor has to get some kind of legislative approvall for judicial nominations, I’m surprised that CA’s Supreme Court has any strict constructionists.
If the point were to constantly proclaim oneself as a believer and others as heretics, then it makes sense to come up with “the” definitive Christian plan. Or we could be honest and admit that all Chrisians struggle with living by a faith that is truly in immitation of Christ. One of the reasons we have constant church and denomination hoppers (and I’ve switched once myself) is a shallow demand that others offer us perfection instead of a generous and agape-based giving to the community we are apart of. This allows a person to inject their ego into insisting that gay marriage will ruin the church but that gambling is perfectly acceptable. If we took the approach instead that it is a humble mutual and community, as well as individual quest to understand and live by Christ’s commands, Christians could offer true support and encouragement to each other in the faith.
Conservative evangelicals have often mocked mainliners, but they are now finding younger evangelicals rejecting standards and measurements that they think have been skewed toward a few social issues while missing the larger picture.
Southern Baptists in Oklahoma have now experienced several years in a row of declining baptisms. Finally, they, too must look inward as opposed to just favorably comparing themselves to other denominations.
For years, the mantra was that liberals were driving young people away. In recent years, though, many younger evangelicals say it is the harsh judgmentalism, the haughty air of superiority among older conservative evangelicals that is sending them elsewhere.
The main thing that has undermined the Christian faith is greed, and that is written on far less than other topics, from what I can remember.
Where are the strict constructionists when it comes to eminent domain or the reservation to Congress declaration of war.
Except for a few conservatives and most libertarians, attacks on court decisions are addressed almost exclusively toward liberal judges, when conservative appointees have done just as much to transfer power from legislative branches to the judicial branch.
For some of the “faithful” Christianity seems to be limited to the issues of abortion and homosexuality.
sexual identity is a mystery yet.
maybe in a past life a person was the opposite sex and now identifies with that sex.
not usually a choice but a desire based on desire for same sex.
much to learn about human behaviour.
out of ignorance we call it sin.
I dont care what bible says bible also says kill those that work on sunday or is it sat.
“the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment” (p. 79).
The exact same argument is used to justify bans on same-sex marriage.
How diod the court miss that?