Progressive World Review

          Arguments were heard today in California’s Supreme Court on the constitutionality of the state’s ban on same-sex marriage.  In 2004, at the direction of Mayor Gavin Newsom, San Francisco began issuing marriage licenses to same-sex couples but these licenses, ultimately were revoked by the state’s high court.  In 2005 San Francisco Superior Court Judge Richard Kramer ruled that banning same-sex marriage was unconstitutional but The First District Court of Appeal overruled this decision in 2006. 

          The arguments in opposition to same-sex marriage center mostly on existing law.  Since 1977 California law explicitly defines marriage to be between a man and a woman.  From the statute,

Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. (Family Code Sec. 300.)

Additionally, in March of 2000, voters approved Proposition 22 which states, “Only marriage between a man and a woman is valid or recognized in California.” (Family Code Sec. 308.5.)  And the argument is that marriage should be defined by the will of the people rather than judicial caveat.  From a court brief written by Deputy Attorney General Christopher Krueger,

A day may come when the people decide to legalize same-sex marriage.  But such a social change should appropriately come from the people rather than the judiciary so long as constitutional rights are protected…

          But proponents of same-sex marriage would say that constitutional rights are not being protected, that California’s constitution does not allow for denying marriage rights to same-sex couples.  And while current law does recognize domestic partnership rights, marriage is such an important institution that any alternative for same-sex couples is by definition, inferior.

          While I believe that the arguments in favor of same-sex marriage are perfectly valid, I also believe that at its core, this is a church-state separation issue.  Marriage is a religious ritual and as such, should never have been codified into law to begin with.  But now that marriage is a part of our nation’s laws, constitutionally, it can no longer be considered a religious institution; it is now a public institution and is fully covered under the 14^th amendment’s equal protection clause.

          Ironically, if marriage had been left the religious ritual it started out to be, the people who believe that marriage should be only between a man and a woman would be completely free to discriminate against whomever they please, without any need for the constitutional amendment banning same-sex marriage that many are calling for.

–Paul Wilden

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