Everyone’s no doubt heard about yesterday’s California Supreme Court ruling that invalidates Proposition 22 and makes civil marriage available to all couples. You can read the ruling here.
The Anti-Gay Industry seems a little testy about it:
It is tyranny, plain and simple.
Judges do not have the authority to invent ‘rights’, overturn all of recorded history, biology, and a super-majority of the people, and the law they passed.
The judges’ ruling should be ignored as of no legal effect, and the judges arrested and tried for tyranny.
This comment is from Loudoun’s Prison Fellowship Ministries blog, which gives us the usual song and dance about “judicial activism” and the coming deluge of people marrying their dogs and dahlias. Yawn.
I can’t help noticing something. There have been a number of state Supreme Court rulings in the last few years that found the opposite, that discriminatory marriage laws did not violate those respective states’ constitutions. I have searched my memory, and I can’t seem to recall any marriage equality advocates calling for the arrest and trial of the judges in those cases for treason (which you may recall carries the death penalty). Seems a little extreme, but maybe that’s just me.
At any rate, here is another exposition of the “judicial activism” argument:
The court stepped in, summarily overturning laws…Tossing aside evidence that the constitutional provision was never intended to apply to the situation at hand, the court instead looked to what it grandly described as the “broader, organic purpose of a constitutional amendment.”
How dare they, those “unelected judges.” They ignored the will of a clear majority of the people, turning to “’emanations’…and other airy constructs the court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.” They arrogantly dismissed the state’s “legitimate legislative objective of preventing the sociological and psychological evils” that will surely result from allowing people to marry the partner with whom they are in love, and with whom they are building a life and family.
This happens to be Ruth Marcus, discussing John McCain’s attempt to mimic the Pat Robertson crowd. The “legitimate legislative objective” quote referenced above is taken from the oral arguments in a marriage rights case – not California in 2008, not New York in 2006, or Massachusetts in 2004 – but Virginia in 1967. This was Virginia’s attorney, arguing that the Commonwealth had a legitimate interest in preventing interracial marriage. Marcus, listening to the case on the occasion of Mildred Loving’s passing, found the juxtaposition rather compelling. (You can listen to the oral arguments in Loving v. Virginia here.)
Basic human dignity prevailed then, as it did yesterday:
The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. 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.”
– Chief Justice George, writing for the majority
Here is the statement from Equality Virginia Executive Director Dyana Mason:
Equality Virginia Celebrates with California
(May 15) In response to the 4-3 California Supreme Court ruling overturning that state’s marriage ban, Equality Virginia released the following statement from Dyana Mason, Executive Director:
“All Americans should celebrate the California Supreme Court Decision today. Interpreting that state’s constitution, the Court ruled that their same-sex marriage ban was unconstitutional and that all couples, gay and straight, have a right to marry the person they love.”
The California marriage decision will affect over 36 million people – well over 10% of the total population of America.
Unfortunately in Virginia, we took a different path with the 2006 passage of the so-called ‘marriage amendment’ banning any type of relationship recognition for same-sex couples, even though a majority of Virginians did and continue to support civil unions. We will continue to work to change hearts and minds and to seek full equality under the law.
We applaud the National Center for Lesbian Rights, Equality California, Our Family Coalition and all the plaintiffs for their courage and leadership.
Meanwhile, the good folks at the Virginia “Some Families Foundation” are beside themselves, and not even making sense. In what I can only describe as a unintentional nod to EV, Victoria Cobb declares that the California ruling “reads more like an Equality Virginia press release than a legal document.” She goes on to express her confusion about what a family relationship is, suggesting that the court has left the definition “open to any of an assortment of behaviors.” She doesn’t enlighten us as to what that “assortment” might be, but perhaps she needs to read the ruling more carefully. It seems to me that the court has clearly described the “behaviors” that make life partners a family, things like providing for each other, being able to make decisions for each other, having parental rights and responsibilities – those things that are addressed by Domestic Partnerships – as well as the more intangible aspects of marriage, the public declaration that each partner will now be understood by all to be no longer just an individual, but part of a new unit, a couple committed to each other for life.
That understanding of marriage is an integral part of the value of marriage to individuals and society. The Center for Marriage and Family (Maggie Gallagher‘s outfit) is chock full of research demonstrating that marriage is good for you. Just this morning they sent out an email with some new material on the fiscal benefits of encouraging marriage. It seems almost painfully obvious that these basic principles apply to all couples, not just heterosexual ones. Yet, Maggie Gallagher and her ilk continue to defy reason in arguing that these benefits to social stability, taxpayer savings, emotional health, lifespan and security for children are irrelevant when it comes to same sex couples. They not only want Special Rights, they want a Special Reality that applies only to them.
Reality, however, is what it is, and not what they wish it would be. The reality of our current patchwork approach to family recognition, in which some states recognize marriage for all couples, while others have some form of domestic partnership registration or civil union, and still others recognize no relationship rights at all for our community, cannot last. It is a ridiculous administrative situation that will quickly demand resolution.
Another reality that those bloviating about “the will of the people” being ignored need to be aware of (or cease and desist lying about) is this one:
Equally misinformed will be anyone arguing that this is some sort of an example of judges “overriding” the democratic will of the people. The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their “marriage” laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed “it is up to the state Supreme Court” to decide the issue.
Polls have found substantial support for gay marriage in California, with dramatic trends toward favoring gay marriage. While there was a referendum passed in 2000 limiting marriage only to opposite-sex couples, five years later (in 2005), California’s state legislature became the first in the country to enact a same-sex marriage law without a court order compelling them to do so. Thus, even leaving aside constitutional guarantees (which, in a constitutional republic, trump public opinion), today’s ruling is consistent with that state’s democratic processes and public opinion, not a subversion of it.
Kudos to the plaintiffs in California and all those who saw this process through.