Progressive World Review

In a slim 4-3 decision, California’s Supreme Court has overturned the laws banning marriage between same sex partners.  The decision was something of a surprise given that six out of the seven justices are Republicans but contrary to what the religious zealots are saying, far from being “judicial activism”, the decision was based solely on  constitutional issues,

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”

Complaints of “going against the will of the voters” have been voiced far and wide but even grade-schoolers are taught that everyone in this country has the same rights as anyone else and that no vote can take that away.  Slavery after all was once favored by the majority, not to mention denying women the vote and Jim Crow laws, all with majority support in their time.  The court dispelled this particular argument by citing the 1948 case, Perex vs. Sharp,

Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v. Sharp (1948) 32 Cal.2d 7114 - which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state – makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized. (emphasis added)

The “history” argument being essentially the same as the “will of the voters” argument, either way, all laws and regulations must pass constitutional muster in order to be valid regardless of what the voters want or how it’s always been done.

But what is probably the most disingenuous argument I’ve heard so far is how unfair it is for the court to “redefine” marriage and force this new “definition” on heterosexuals.  Allowing gays to marry doesn’t change heterosexual marriage in any way at all.  And nothing is being “forced” on anybody.  My marriage, along with every other existing marriage, will remain exactly as it was before.  What is so hypocritical about this argument is; by denying the right for same-sex couples to marry, you do in fact cause harm, and you are “forcing” your values on people who don’t share those values.  And in doing so, you accomplish nothing of any real importance, other than satisfying some xenophobic need to force other people to conform to your own idea of morality.

–Paul Wilden

You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.