Category Archives: General

Quick Thoughts on CA Decision

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Some quick thoughts on the wonderful California decision (still reading it):

It took me forever to find the actual decision of the court. I had to skim through the first seven pages before I found something resembling a ruling. Then on the next page it said something about not needing to deal with the word “marriage” and I thought maybe it was more like the New Jersey decision, pro-rights but not mandating the word. Thoroughly confused and figuring I wasn’t going to find anything definitive in the next few pages, I tried to find the end of the opinion but couldn’t (the end is in the middle, as the main opinion is followed by some concurrences/dissents). Finally found the end and realized the good news.

In six months, Californians will likely be voting on a constitutional amendment to ban same-sex marriage. Some people expect a backlash against the court’s decision. Some people, those who are anti-gay or who are against marriage equality for gay couples, will feel angered and energized by the decision and be even more eager to turn out to vote in favor of the amendment. Also, the vote will be happening in the context of the Obama-McCain race on the same day’s ballot; if McCain runs strong in California, this could help get out the Republican vote.

But I think this decision helps those of us on the side of equality more than those on the other side. Over the next six months, gay couples will be marrying in California. And Californians will see that gay couples have gotten legally married and the world hasn’t fallen apart. Just as important, there are many people who might oppose same-sex marriages in theory but who are good at heart, who have empathy for their fellow human beings, and who are not going to want to take marriage away from couples who have already been legally married under the imprimatur of the California constitution. They’re not going to want to tell the children of those couples, sorry, your parents are no longer married. This is different from the legally dicey San Francisco marriages four years ago; this is really and truly legal.

This is really and truly wonderful.

California Marriage Decision Excerpt

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Key passage from the decision:

[W]e conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.