This year in California, the November ballot will put to the voters once again the question of how marriage should be defined. In May of this year, the California Supreme Court threw out the year-2000, voter-approved initiative, Proposition 22, that defined marriage as between a man and a woman (61% voted in favor). Although this has brought to the forefront the definition of marriage, much of the attention has been focused on the "right" of homosexuals to marriage. The media, always looking for a controversy that can gain them an audience, labels anyone in favor of traditional marriage as "religious" or "anti-gay", and attempts to portray the redefinition of marriage as being on par with the Civil Rights movement of the 1960s. Given the high tensions, the raw emotion, and the dearth of voices supporting traditional marriage, I think it's worth the time to cut through the frenzy, to try to look at some of the issues from a rational point of view. We need to take a hard look at the questions in this dispute over what marriage is.
How did we get here?
- In 2000, the people voted overwhelmingly in favor of Proposition 22, defining marriage as between a man and a woman.
- In 2002, the California state legislature passed AB25, which gave homosexuals the right to adopt.
- In 2003, the state legislature passed AB205 creating domestic partnerships, in spite of Proposition 22. The court bypassed Proposition 22 by finding that it only protected the term "marriage" but not the substance or form of marriage.
- In 2004, San Francisco's mayor grants same-sex marriage licenses, openly violating the existing laws.
- In 2005, the legislature passes AB 849, a bill legalizing same-sex marriage. It is vetoed by the governor.
- In 2006, AB43 is passed by the legislature again attempting to legalize same-sex marriage. It is again vetoed by the governor.
- In 2008, the California Supreme Court strikes down Proposition 22.
Only the first event, Proposition 22, was the express will of the people. The rest have been the efforts of the state's legislature or state courts. Considering that the legislature passes hundreds of bills every year—and considers many thousands more—I suspect that most people do not recall or are simply unaware of these events.
Media Distortion
One of the challenges for those in favor of preserving marriage as between a woman and a man is the media's heavy distortion of the entire discussion by its constant references to supporters of traditional marriage as "anti-gay". The text of Proposition 22 and the proposed Constitutional Amendment, Proposition 8, have not a single negative thing to say about anyone or anything. Rather, they affirm, using positive language, what marriage has always been prior to being erased by the court. Specifically, proposition 8 states that, "Only marriage between a man and a woman is valid or recognized in California." Any reading of "anti" anything is the result of interpretation or "spin". Make no mistake: the redefinition of marriage in California has already occurred with the decision by the California Supreme court to strike down Proposition 22. The proposed amendment this November is an attempt to restore that which was taken by the court. Those spinning against this proposition label it as "anti-gay", not because it is, but simply because they hope this language will browbeat voters giving them what they want.
Nothing to gain through redefinition
Speaking of what they want, what exactly do same-sex couples gain if we allow the redefinition of marriage to stand? According to the California Supreme Court, ironically in the same ruling where they overturned Proposition 22, they would gain nothing: "[T]he current California statutes grant same-sex couples who choose to become domestic partners virtually all of the legal rights and responsibilities accorded married couples under California law" (California Supreme Court, case S147999, dated 15 May 2008). In the same document, they also write, "California... has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple" (ibid). Voters should note the irony here: we were told that, in the spirit of fairness, that domestic partnerships needed to be created and recognized by the state. Now that they exist, they're used to justify redefining marriage. After all, reasoned the court, Proposition 22 only protected the name marriage, not the substance or form, and since they're now the same in all but name only, there's nothing preventing us from giving the name as well.
Overstepping Judicial Power
With the court having already stated there is no additional legal benefit or privilege to be gained, there remains only the intangible, emotional aspects to consider for those in favor of redefinition. The lack of a strong legal argument meant that the court had to perform legal legerdemain in an effort to justify itself. When the court decided to overturn Proposition 22, it was not due to serious legal inequities, but for "dignity and respect", a term they used repeatedly. When the courts legislate (but do not define) from the bench the "dignity and respect" of one group at the expense of another, they have strayed outside their constitutionally-defined role. Justice Baxter summarized this in his dissent, noting that the "[the court's] pronouncement seriously oversteps the judicial power". Overstepping its constitutional powers is grave enough, but the court also compounded a bad decision with yet another. With Proposition 22 in place, the state legislature could not legally overturn or repeal the will of the voters to redefine marriage, although it did everything just short of that, including the creation of domestic partnerships. The court relied on the existence of domestic partnerships as basis for inventing a new right, effectively allowing the legislature to do something that would otherwise be illegal: It gave "the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute" (dissent by Justice Baxter). Amending the Constitution is a power reserved solely to the People, not the legislature nor the judiciary. Worse still, the court placed its decision outside the legislative process by declaring this invented right to be found in the Constitution, even though they relied on laws created by the legislature for support, which one Justice described as the court improperly creating "constitutionalized" legislation (ibid). A constitutional amendment or right, by definition, does not come from the legislature nor the judiciary.
Unanswered Questions
The court also left many unanswered questions that open the door for further legislation by the judiciary. Consider that since the anti-traditional marriage crowd does not find dignity and respect in domestic partnerships (per the court), it's unreasonable to assume that they'll be satisfied for long with having just the name changed to marriage. What will happen in 6 months, a year, or longer, when the anti-traditional marriage group feels they still don't have the dignity and respect the court has tried to confer on them, and how will this lack be measured? Will we next dissolve traditional marriage altogether so the anti-traditionalists can feel dignity and respect? What about the dignity and respect of other groups like creationists, gun owners, or oil companies? Will the court be providing legislation to ensure their dignity and respect as well? The reality is, of course, that dignity and respect are earned, not legislated nor bestowed by decree, a fact apparently lost on the court.
Uneven Application of Law
In its decision to overturn Proposition 22, the court stated that the proposition did not meet the "strict scrutiny" standard of being both compelling and necessary for the State. However, when they went one step further and rewrote marriage, the court changed tactics and failed to apply that same standard. Specifically, the court did not demonstrate that redefining marriage was both compelling and necessary, something they could not do since they had already found that no legal inequality exists. In spite of this obvious inconsistency, the court overturned Proposition 22 and created a new "right" to marriage. Even if you agree with the court's decision to overturn Proposition 22, you should be outraged at how they got there. As age-old wisdom reminds us, the ends do not justify the means. The court's contradictory reasoning (the "means") is now legal precedent for future cases, and supporters of the court's decision can be sure that future rulings will result in decisions they do not like using this same approach.
California Constitution Original Intent: A Man and a Woman
The ingenious design of our government gives to the people various mechanisms for dealing with out-of-control legislators, which is why they, along with the People, are the groups designated to create laws. Judicial activism that "finds" (a euphemism for invents) new rights upsets this carefully designed balance of power. This "new right" was not the original intent of the California Constitution, as witnessed by dissenting Justice Baxter in this case: "The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex" (italics added).
Ignoring its own rulings
The court also had to abandon its own precedent in striking down Proposition 22. In a 1998 ruling, the California Supreme court stated that its role "as the final arbiter of constitutional issues", especially regarding statues, is to "always presum[e] the constitutional validity of legislative acts and resolving doubts in favor of the statute" (Dawn D. v. Superior Court (1998), as quoted by Justice Corrigan). Adherence to this standard means that the court should have deferred to the voters and the legislative process, and upheld Proposition 22.
Among the many ironies of the ruling is that the court refused to treat as binding the historical meaning of marriage yet relied on history to invent the new right of same-sex marriage. They cite previous cases, statutory laws, social norms, and previous treatment of gays—all historical events—to justify the invention of a new right throughout the ruling.
Not like the Civil Rights movement
What about the comparison to the Civil Rights movement? What makes the civil rights movement so different from current events is that the courts correctly let the people (through the legislative process) create the laws. Justice Corrigan sums it up nicely:
"The [court] majority refers to the race cases, from which our equal protection jurisprudence has evolved. The analogy does not hold. The civil rights cases banning racial discrimination were based on duly enacted amendments to the United States Constitution, proposed by Congress and ratified by the people through the states. To our nation’s great shame, many individuals and governmental entities obdurately refused to follow these constitutional imperatives for nearly a century. By overturning Jim Crow and other segregation laws, the courts properly and courageously held the people accountable to their own constitutional mandates. Here the situation is quite different. In less than a decade, through the democratic process, same-sex couples have been given the equal legal rights to which they are entitled."
When these "Jim Crow" laws were overturned in 1954 by the Supreme Court in one of the key cases of the Civil Rights movement,
Brown versus Board of Education of Topeka, the court unanimously found that the separate educational facilities in place were in fact not equal, something much more concrete and measurable than vague terms like "dignity and respect".
It was the legislative process that created the laws regarding civil rights, not the courts. The court simply upheld them.
In the case to protect marriage, though, we have something completely different than the civil rights movement. The California Supreme Court has already declared that there is equality in domestic partnerships; inequality in law does not exist here. They seek to change, in a fundamental fashion, the institution of marriage, and by extension, the traditional family. With no legal benefit or privilege is being withheld (per the court), and the institution itself scrapped in favor of a new definition imposed by the court, this issue is not like the Civil Rights movement. Again Justice Corrigan:
"The distinction between substance and nomenclature makes this case different from other civil rights cases. The definition of the rights to education, to vote, to pursue an office or occupation, and the other celebrated civil rights vindicated by the courts, were not altered by extending them to all races and both genders. The institution of marriage was not fundamentally changed by removing the racial restrictions that formerly encumbered it. Plaintiffs, however, seek to change the definition of the marital relationship, as it has consistently been understood, into something quite new. They could certainly accomplish such a redefinition through the initiative process. As a voter, I might agree. But that change is for the people to adopt, not for judges to dictate."
Losing Marriage, Dignity and Respect
Those in favor of traditional marriage stand to lose an institution that has been defined as being between a man and a woman for untold thousands of years, and that has served as the core of families, which are the foundation of societies. When you redefine marriage, by definition, you redefine family. We are being asked to toss aside not just the time-proven institution of marriage, but also family, to be replaced with chaos and confusion, all so those who refuse to abide by its traditional definition can feel "dignity and respect." If Marriage is dignified and respectable, it is because it has earned these accolades. In the effort to heap upon themselves the perceived dignity and respect associated with it, those in favor of erasing traditional marriage destroy its very nature. Rewrite it, and the accolades no longer apply because the original nature of Marriage has been extirpated. The dignity and respect disappears with the original definition.
Those in favor of marriage as between a man and a woman also stand to lose additional freedoms in the future. By its ruling, the court has taken away the right of the People to choose for themselves what they think and how they will live, and replaced it with a dictate of its own. If marriage can be redefined by the court, so can other deeply-rooted definitions such as gender, religion, and more. When one side stands to gain nothing tangible while the other loses a core, defining foundational piece, it is nothing less than an effort to take away and destroy.
Uncomfortable Questions
There are a number of uncomfortable questions that we will have to face if we do not pass Proposition 8: What will marriage mean once redefined? And when will it be next redefined? What other areas of society will we redefine, and who will make these decisions? These, and others, are all troubling questions not being discussed in public forum, with immense consequences. Remember that Proposition 22 was the voice of the people, and a small group of judges decided to overturn it, not due to serious legal inequities, but for "dignity and respect." When the courts can legislate "dignity and respect" for a group with whom you happen to agree, they can also do so for those with whom you disagree. The California Supreme Court has had to engage in the worst kind of judicial activism to fulfill a political agenda. We should all be very concerned about how we got here and the inevitable consequences. More importantly, we must use the legal mechanisms available to us to contain the activist court. We must pass Proposition 8 this November to take the ability to define marriage back from the court and place in into the hands of the People.
