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May 22, 2008





Please read the Supreme Court's 'gay marriage' decision



Last week’s controversial California Supreme Court decision that allows gay couples to marry deserves a more thoughtful analysis than you’ll find on any bumper sticker. I suggest that before we let the pundits and politicians tell us what we should think about the decision, we ought to do something truly radical: read it.

I doubt that the Court’s opinion will be on many non-lawyers’ summer reading lists, but it should be, as should the opinions of the three dissenters (one of whom, a Republican appointee, wrote, “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.”)

Despite what you may hear on TV, this is not an instance of a “liberal court” engaging in social engineering. The four justices who joined in the opinion (three Republican appointees, one Democratic appointee) reached their decision without any political agenda. At issue in the case was whether separate, but in most ways equal, treatment of straight couples and gay couples under California’s marriage law passes muster under the state Constitution’s equal protection clause. The state’s Domestic Partner Law already confers all the same rights and duties upon domestic partners as the law does upon married heterosexual couples, so the real question is whether one class of people can be denied the use of the word “marriage” by the state.

While the Court’s decision will no doubt be considered by some as an assault on marriage, it’s anything but that. Reading the opinion, written by Chief Justice Ronald George, it becomes very clear that the Court is well aware of the importance of marriage to our society in terms of establishing the stability of families and providing loving environments for raising children. The Court finds that marriage is so important, and the word itself carries such weight, that denying its use to individuals based upon their sexual orientation is a form of state-sanctioned discrimination in what is an incredibly personal decision.

The very idea of gay marriage runs counter to most religious traditions — mine included — but the Court isn’t charged with enforcing religious beliefs, and is in fact constitutionally prohibited from doing so.

The simple way to define discrimination by the government is whether a law says to a group of people, “You may not do what we allow others to do.” I’ve struggled with the gay marriage issue over the years, my upbringing clashing with my legal training. I have found it helpful to substitute other groups in the sentence “Gays may not obtain marriage licenses in California.” How would I feel if the first word was Asians? Foreign-born? Catholics? What the Court has said, boiling its 121-page opinion to a single sentence, is that the state has no constitutionally permissible reason to deny to a gay person the right to choose his or her life partner, or to stigmatize that choice by giving it a lesser name than marriage.

The usual arguments against gay marriage are that same-sex couples can’t procreate, or may not set good examples for children whom they raise. (The same is true for some heterosexual couples.) It’s interesting that the three dissenting justices don’t rely on biology or sociology in disagreeing with the majority opinion, but rather on whether it is the Court’s proper role to make this decision at all, and that’s a legitimate legal point. The gay-marriage soccer ball has been kicked around among the courts, the Legislature, the governor, and the voters many times in this state. The state Supreme Court has avoided deciding the question whenever it didn’t have to face it squarely. This time, the litigants left no room to dodge the issue.

In the end, the dissenting justices may be proven right. Whether you agree or disagree with the Court’s decision, you’ve got to question the Court’s timing. I suppose that there’s no bad time to support the state Constitution, but did this decision have to be published in the middle of a presidential election year?

There will be a ballot initiative in November to amend the Constitution, perhaps in other states as well. In a year when we really should be focusing on who’s best to lead the country in a time of war, recession, foreclosures, food shortages, and an energy crisis, do we need to turn the presidential election into a referendum on gay marriage — a subject over which the president has no power? The U.S. Supreme Court cast the deciding vote in the 2008 presidential election. I hope that the California Supreme Court will not have unwittingly done the same in 2008.

Please read the Court’s opinion, the dissents, and, if you get really into the subject, a couple of the briefs submitted to the Court by religious, social, and other organizations. Make up your own mind. Here’s the link:

Louie Castoria is a regular columnist for the Review.