CA Supreme Court upholds same-sex "marriage"
Yesterday, by a 4-3 vote, the California Supreme Court overturned a state law which restricted marriage to being between a man and a woman. The Court went out of its way to say that they were not attempting to rule on the policy choice of whether “a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but only to determine whether the difference in official names of the relationships violates the California Constitution.
It’s an important point, though there’s no doubt that the judges understood that the ruling would not be viewed so narrowly.
Rather than get into the nitty-gritty of the decision, I’d like to make a broader point: The reason this is even a problem is that government has inserted itself into what is essentially a religious institution and a matter of contract between two people.
(Freak, I expect you to respond to this…)
I do not buy arguments made (including by The Freak) that there is enough of a state interest in marriage that it should be the subject of law, much less the cause of a benefit or penalty in the tax code.
Gay-rights activists have a legitimate argument to make about equal protection. If the government is going to let two people enter into a contract and give it a name, it’s not clear they should be able to pick and choose which two people can enter that contract. I fully understand the arguments this leads to, such as “Should incest then be legal?”, but when it comes down to prior restraint on liberty versus allowing freedom and dealing with its warts, I’ll generally side with the warts. I have argued in the past that private citizens and businesses should be able to discriminate, and government shouldn’t. I remain convinced of the correctness of that position.
However, those who oppose this ruling have just as good an argument to make, as judge Baxter did, that “in reaching this decision…the majority violates the separation of powers, and thereby commits a profound error” by overturning a vote of the people. Baxter adds “I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental -- article III, section 3, the separation of powers clause.”
Judge Corrigan made a similar point: “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.”
In California, laws are already in place “under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.” So today’s ruling was technically about whether same-sex couples can call themselves “married”. But the ramifications of the decision will no doubt be interpreted more broadly, both inside and outside California.
My opinion is that on balance although gay rights activists have an argument about equal protection, the more important value to protect is separation of powers and keeping unaccountable judges from acting like legislators or, even worse, overturning the results of valid elections. This should be solved by getting government out of the marriage business entirely, and then letting any church, synagogue, Hindu temple, or whatever, decide what sorts of marriages they’re willing to perform.
For the record, I do not expect the issue to be as big a political force (for Republicans) as it has been in recent years, particularly since John McCain opposed a constitutional amendment to ban same-sex marriage and is generally struggling to gain the enthusiasm of the Republican base, whatever that is these days.
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