In Re: California Marriage Cases—Something Old, Something New, Something Borrowed, Something Blue

As a matter of law, history, social policy, and faith, it is my view as articulated in a brief I helped draft in the California cases that marriage is properly reserved to a man and a woman. In other words, I lost. That said, the California Supreme Court decision in favor of same-sex marriage in both the majority and dissent is written in reasoned and intelligent voices.

It would be especially worthwhile if the California opinion did not immediately trigger the predictable responses by the contending sides or extended gloating or criticism by those pursuing the presidency. The common good will not be advantaged by either gay euphoria on one side or straight predictions of moral disintegration. Nor will the usual hand-wringing about judicial activism be of much utility. 

Sen. Obama might take special care in his assessment of the opinion. He, like the court majority, I am certain believes extending affirmation to same-sex marriage ultimately honors that venerable institution. As such, it would be prudent for Sen. Obama and supporters of same-sex marriage to note that, for the most part, those who opposed that affirmation did so not out of acrimony or dislike, but out of a like appreciation for the family as an irreplaceable cultural building block and often sincere religious belief that deserves respect and accommodation.

So, what did the opinion actually do?

Something Old—Marriage by Any Other Name …
California’s decision to affirm same-sex marriage arguably will not have a dramatic impact within the state itself since the state had already been so generous in its domestic-partnership provisions and in eliminating virtually all forms of employment and housing discrimination. Indeed, the most noticeable impact may be in the usage of the word marriage , though the court puts it more sensitively: “Whether or not the name ‘marriage,’ in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to all other officially recognized family relationships.” In short, whatever terminology the state fixes upon, it must be extended to same-sex and traditional marriage alike. 

Something Borrowed
Perhaps it would be best if the state would forgo using the terminology of marriage altogether and leave that to religious bodies where the institution is accepted as having divine origin and is associated with sacrament or other blessing. In that event, the state license for everyone could be called “civil union” or, as the court suggested, “enduring union,” which indeed is the hope of every couple and the genuine work of life-long friendship.

Something New
Analytically, the court is at its strongest in pointing out how the usage of the term marriage for opposite-sex couples exclusively can stigmatize same-sex couples. The court makes an analogy to the separate but equal decisions that preceded Brown v. Board of Education , where, of course, the minority schools were never quite equal. The court writes: “[P]articularly in light of the historic disparagement of and the discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships … will cause the new parallel institution that has been made available to those couples to be viewed as of lesser stature than marriage, and in effect, as a mark of second-class citizenship.” Poignantly, the court gives emphasis to how the disparity may affect children of gay couples and how privacy can be invaded then in numerous everyday social, employment, and governmental settings in which the individual is asked whether he or she is married or single. An individual who is a domestic partner and who accurately responds to the question for disclosing that status will functionally be disclosing, said the court, his or her homosexual orientation even if that person would not want to make such disclosure in that circumstance, and it is totally irrelevant to the setting of the question.

This is a nice point. It might have been made stronger had the court observed that nomenclature that does not occasion prying into the sexual choices of persons also has the byproduct of not aggravating opposite-sex couples or individuals with explicit sexual identification or discussion of sexual orientation that often seems, and is, out of place in workplace, school, and other public settings.

So, What’s the Harm in Same-Sex Marriage?
It is often asked, as Marty’s helpful post does , how the acknowledgment of same-sex marriage harms marriage between a man and a woman. The inability to give a simple, secular answer to this explains the California victory in favor of same-sex marriage more than the reasoning of the opinion. That doesn’t mean there is not an answer. There is a religious answer, and it is anchored in the creation story recorded in the book of Genesis.  

The religious answer has a secular side, but it is less articulable. Traditional marriage has been accepted without argument for so long that the words custom and history substitute for analysis. When a more searching inquiry is made, it is often related to the genuine belief that the institution of marriage and associated natural procreation should be (and has been for millenniums) interrelated and very much worth preserving. The story of the declining populations and cultures of Western Europe is debated but troubling. No one wishes the same for the United States, though it is hard to deny that marriages are occurring later and with less frequency (with a con-commitant rise in cohabitation and its various adverse instabilities and risks for children). A smaller youthful population with a sizable graying demographic has many negative economic and social consequences manifest in everything from what does or does not get accomplished in schools to the coming bankruptcy of the Social Security system to much else that depends on the constant influx of new people, responsibly prepared to take up for the work of citizenship and community. 

With that as backdrop, did California actually accomplish anything different than Massachusetts already did several years ago?

Exportable California Licenses Seeding State and Federal Litigation
California’s decision is more groundbreaking than that of Massachusetts in two senses: First, Massachusetts decided, for the most part, that its opinion applied only to its own residents. Nonresidents can be married in Massachusetts only if the marriage would not be prohibited in their home states, whereas California has no residency requirement or waiting period, nor does it determine the availability of its own license in relation to whether such license would be permissible elsewhere. Presumably, this will mean a large number of same-sex California licenses being issued to the nonresident visitors, who will then return to sister states requesting recognition of those California licenses. If those requests are denied, litigation similar to that just concluded in California under that state’s marriage law will result as well as challenges to state and federal Defense of Marriage Acts.

Sexual Orientation as a Protected Class
Second, the fact that California declared sexual orientation to be a suspect classification will likely put additional pressure on Congress to do the same in the Civil Rights Act. To the extent other state courts follow California’s lead, one can anticipate that this state jurisprudence will ultimately come to be reflected in federal jurisprudential thinking as well. Certainly, one can anticipate the decision today being cited as instructive (though clearly not binding, given its exclusive state-law provenance) in challenges to the military’s ongoing application of its “don’t ask, don’t tell” regulation. The end of sexual-orientation discrimination has much to commend it, as again Marty nicely illustrates in his quotation from the opinion, but again, there are interwoven religious beliefs that are not based on stereotype and that do deserve accommodation.

Governor of the People—Well, a Few With Robes at Least
Responding to today’s California Supreme Court decision approving same-sex marriage in relation to a November ballot initiative that would declare the opposite, Gov. Arnold Schwarzenegger said:

I respect the court’s decision and as governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.

Depending on your perspective, this may or may not be a profile in courage. Gov. Arnold seemingly reasons that it is more important to secure the four votes of the majority of the California Supreme Court than the approval of the 4,160,706 voters, or its 2008 equivalent, who had approved affirming traditional marriage in 2000 in Proposition 22. The governor’s thinking seems a wee bit anti-democratic.  

Is there a footnote in Active Liberty that explains this new-found gubernatorial respect for the will of the judges? (Sorry, I couldn’t resist a little judicial-activist tweaking.)

The Coming Unconstitutional Constitutional Amendment?
In any event, Gov. Schwarzenegger may not be the only person asserting that there can be an unconstitutional constitutional amendment. The language of the proposed initiative on the ballot in November is virtually identical to the provision of the state family code that was today invalidated. Moreover, the signatures given for this initiative were given prior to the court’s decision. Certainly a court that is prepared to declare sexual orientation a suspect class and redefine marriage won’t be overly shy about questioning whether the wording of a state constitutional amendment initiative was specific enough to overrule an intervening court determination of this magnitude.

But that’s assuming the initiative passes. 2008 is not 2004, and the turnout in November for traditional marriage is no sure bet. Voters attracted to Sen. Obama by and large will be pleased by a today’s majority opinion and will be of no mind to approve a state initiative reaffirming traditional marriage. 

Something Blue—Will the Outliers Then Be Punished?
Should same-sex marriage and nondiscrimination on the basis of sexual orientation become the norm, as Marty speculates, what will be the impact on religious bodies that sacramentally must decline to conduct same-sex marriages or that cannot under existing religious teaching hire homosexual persons for certain positions such as teacher, athletic coach, or the clergy itself? The Supreme Court’s jurisprudence on the Free Exercise Clause is presently insufficient to give any shelter to these practices. Practically, will the existence of religiously affiliated institutions be threatened by the denial of tax exemptions or the denial of access to other public programs on the theory that their practices would then violate public policy? These are real questions that have been aggravated by scholarship and judicial decisions that have allowed or advocated the aggressive exclusion of the Boy Scouts following their successful defense of their right of association before the Supreme Court.  

Let History Be Our Guide—At Least As It Applies Against Polygamy and Incestuous Marriage.
There is one anomaly that stands out in the opinion’s rejection of history and tradition. The California Supreme Court opined that its approval of same-sex marriage “does not mean that this constitutional right similarly must be understood to extend to polygamists or incestuous relationships.” But why not? In rejecting the state’s defense of traditional marriage, the court found the historical support for traditional marriage to be of little purchase. Apparently, with respect to polygamy and incest, history counts for a lot. The court asserts that “although the historic disparagement of the discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, 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.” 

I agree, but wasn’t that exactly the state’s argument in defense of traditional marriage?