Minority opinion in California marriage case
by
tiponeill
05/15/2008, 8:51 PM #
It was a 4-3 decision - not a unanimous one - here a dissent opens:
The power of a state to regulate and control the basic social relationship of marriage of its domiciliaries is here challenged and set at nought by a majority order of this court arrived at not by a concurrence of reasons but by the end result of four votes supported by divergent concepts not supported by authority and in fact contrary to the decisions in this state and elsewhere.
This protest against the court changing the traditional definition of marriage in California over the will of the people is, however, 60 years old - when teh California Supreme court became the first in the nation to declare the law prohibiting interracial marriage was unconstitutional
The case was Perez v. Sharp - 1948
In this proceeding in mandamus, petitioners seek to compel the
County Clerk of Los Angeles County to issue them a certificate of
registry (Civ. Code, § 69a) and a license to marry. (Civ. Code,
§ 69.) In the application for a license, petitioner Andrea Perez
states that she is a white person and petitioner Sylvester Davis
that he is a Negro. Respondent refuses to issue the certificate and
license, invoking Civil Code, section 69, which provides: "... no
license may be issued authorizing the marriage of a white person
with a Negro, mulatto, Mongolian or member of the Malay race."
Civil Code, section 69, implements Civil Code, section 60, which
provides: "All marriages of white persons with negroes, Mongolians,
members of the Malay race, or mulattoes are illegal and void."