A few more thoughts on the CA Supreme Court Decision:
by
Havelock
05/20/2008, 10:35 PM #
Okay, maybe more than a few… Anyway, I’ve read a lot of nonsense over the last several days on the implications of the recent CA Supreme Court decision overturning the state’s ban on same-sex marriage. After skimming the decision, I posted some of my thoughts here. Allow me to offer a few more thoughts in response to some of the ongoing discussion – for anyone who’s interested. Of course at the moment we’re only talking about the legal/social ramifications of this court decision as they affect Californians. But as we all know, as California goes, so goes the nation – eventually.
So let’s dispense with some of the sillier assertions right off the bat. The idea that this decision paves the way for someone to marry his or her pet, a minor child, a toaster, or a particularly lovely chrysanthemum bush is simply nonsense. Neither does this decision throw open the door to multiple marriage or marriage between close relatives. The fact is that the court did not come close to asserting that people have a fundamental right to marry whomever (or whatever) they wish. On the contrary, here’s how the court defined the basic rights associated with marriage:
“These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.”
Note the explicit references to two adult individuals. Note the deliberate mention of mutual legal rights and responsibilities. It’s useful to observe that the concurring judges made a point of insisting that they weren’t discovering a novel right to same-sex marriage as such. Rather, they were elucidating a general and fundamental right to marriage as described above, a right they saw as inherent in California's state constitution as written and fleshed out by previous cases – most notably the 1948 Perez v. Sharp case that struck down state bans on interracial marriages. The court was very careful to set their decision in the context of a legal environment in which the state legislature had already enacted domestic partnership laws that were explicitly intended to provide same-sex couples with all the substantive rights and privileges afforded to married couples by the state of California. The judges took this to mean that public opinion as reflected in the state legislature had already clearly articulated a consensus view that same-sex couples are not inherently detrimental to society or less capable of creating a sound family environment.
Within that social and legal context, the court decided, the state had no compelling grounds for singling out same-sex couples for differential treatment. More specifically, the court held that to distinguish between same-sex and opposite-sex couples was necessarily to distinguish between people on the basis of sexual orientation and that the state had offered no compelling reason to maintain that distinction in connection with two adult individuals who wish to establish an officially recognized and protected family. The court also held that the state had offered no compelling reason for defining marriage or limiting its rights in such a way as to exclude and thereby disadvantage same-sex couples.
Clearly these findings don’t exactly open the door for any kind of couple, let alone a group, to schedule a hasty trip to the altar. As a matter of fact, the majority opinion specifically says that “the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment.”
Does all that mean that this decision does absolutely nothing to nudge us toward additional, alternative forms of marriage? Not necessarily... By concluding that the state must demonstrate a compelling need for any law restricting the right to marry, and by mandating that any such law must be narrowly tailored to meet that need, the court did at least crack the door for other individuals or groups seeking official state recognition of their families. That opening exists because the court, very appropriately in my opinion, shifted the marriage debate in general toward pragmatic issues relating to a sound family environment and put the burden of proof on the state to show that a given family arrangement is very likely to have significantly detrimental effects. If polygamous and/or incestuous relationships (for example) are in fact inherently detrimental, then surely the state can easily make its case if challenged. If they’re not, then the laws will change. But even if that happens, I don’t see it happening quickly or precipitously.
As alluded to previously, the other major finding of the court was that for any law that treat persons differently because of their sexual orientation to be constitutional, the state must demonstrate a compelling as opposed to a merely legitimate interest in maintaining that law. Further, it must show that its interest cannot be satisfied without that law. Here’s the court’s position in a nutshell:
“There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification.”
This provision is potentially quite significant, though exactly how it might play out is obviously not clear at this point. Whatever course events take, I’d argue that this finding goes a long way toward recognizing a general right to sexual self-expression. Furthermore, by raising the bar on the sorts of legal discrimination allowed on the basis of sexual orientation, the decision also shifts the legal debate regarding sexual orientation toward issues of measurable benefit and harm and away from nebulous issues of public acceptance and social expediency. That’s all to the good as far as I’m concerned.
So what’s not to like?
