Gov. Moonbeam’s Revenge
California supreme court overturns marriage.


Maggie Gallagher

By the narrowest of margins (4-3, just like Goodridge), the California supreme court ruled Thursday that Proposition 22, passed by 62 percent of California voters in 2000, is unconstitutional.

We therefore conclude . . . the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

Call it Jerry Brown’s revenge. The former “Gov. Moonbeam” is now the California attorney general, the man charged with defending the laws of the state, including marriage. And Brown and his staff went out of their way to make sure that no good argument was left on the table in this case, explicitly repudiating, in the state’s brief, the argument that has won the day for marriage in state supreme courts as diverse (and “blue”) as New York, Washington, and Maryland: Marriage is a union of husband and wife because marriage has something to do with responsible procreation — bringing together men and women to make and raise the next generation together.

For example, in Conaway v. Dean (2007), the Maryland high court ruled “marriage enjoys its fundamental status due, in large part, to its link to procreation. This ‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).”

In 2006, in Andersen v. King County, the Washington state supreme court similarly concluded “limiting marriage to opposite-sex couples furthers the state’s interests in procreation and encouraging families with a mother and father and children biologically related to both.”

In addition to winning cases, this argument has the additional advantage of being true — the history and interpretation of marriage laws make it clear that this idea that marriage has something to do with responsible procreation was not invented in order to discriminate against gay people, but has deep roots in our legal tradition in all 50 states and the United States.

What will this repudiation of marriage by the California supreme court mean for law, for culture, and for politics?

Take law first.

On the legal front, this opinion breaks radically new ground: The California supreme court is the first in the country to find a fundamental right to same-sex marriage. Even European courts have rejected the idea that the human right to marry includes the right to same-sex marriage. In 2003, the European Court of Justice ruled, “Article 12 of the European Convention on Human Rights protects only traditional marriage between two persons of opposite biological sex.” The European Court of Human Rights and the United Nations Human Rights Committee have issued similar rulings. (For excerpts from these and other marriage cases, see “Is Marriage Discriminatory?” by my colleague, legal analyst Joshua Baker.)

In a slam-dunk for gay-marriage advocates, the Court also affirmed a sweeping equal-protection right to gay marriage, grounded in the right to have one’s family relationships accorded equal respect and dignity.

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.

Polyamorists, Muslims, and breakaway heretical Mormons can expect to find at a minimum new comfort in this sweeping moral support (if not yet legal support) for the dignity of their own favored family relationships, since the right to marry is the right to have one’s family relationship officially recognized and accorded equal dignity.