Politics & Policy

Interpreting Marriage

The California supreme court hears arguments on the meaning of marriage.

On Tuesday, the California supreme court heard three hours of arguments in a lawsuit challenging the state’s definition of marriage. The case has attracted over 40 friends of the court briefs from a large array of organizations and the oral argument included attorneys representing the California attorney general’s office, the governor, the city of San Francisco, pro-family organizations, gay and lesbian organizations, and private individuals.

During the argument, the justices asked hard questions of both sides, although they seemed to badger the witnesses favoring the marriage laws a little more. Much of the questioning focused on the fact that California already provides all the benefits of marriage to same-sex couples through a domestic-partnership status. For the state’s attorneys, this means that the state has met its constitutional obligation. For the attorneys seeking a redefinition, it unconstitutionally prevents same-sex couples from getting the social status associated with marriage.

One attorney for the redefinition side was asked for a definition of marriage, and responded that it is a legal institution and status, provided by the state, which allows individuals to intertwine their lives and publicly declare their commitment to one another. Thin gruel indeed.

The attorney from the attorney general’s office was hamstrung by the office’s decision not to argue for a robust understanding of marriage, instead arguing only that the court ought to defer to the political process. The attorneys from the Alliance Defense Fund and Liberty Counsel, however, did make strong statements about the meaning of marriage and its consistency with constitutional guarantees.

Now that the oral argument has been held, a decision in the case is expected within 90 days.

The case arose out of a publicity event staged by the city of San Francisco in early 2004, where same-sex couples were given marriage licenses despite the state’s clear definition of marriage as the union of a man and a woman. That law had been reaffirmed in a ballot initiative measure, Proposition 22, overwhelmingly approved by California voters on March 7, 2000.

San Francisco’s actions played a role in motivating 13 states to enact constitutional amendments defining marriage in 2004 alone (27 states now have such amendments). The city’s actions also led to the lawsuit the California supreme court heard yesterday since the city’s actions prompted pro-family groups filed suit seeking to enjoin the city from continuing its course. The city and gay and lesbian organizations responded with a lawsuit claiming the state’s marriage law was unconstitutional.

The California supreme court ordered the city to observe the state’s marriage law in March 2004 and directed a trial court judge to address the question of the marriage law’s constitutionality.

In March 2005, Judge Richard Kramer of the San Francisco superior court said California’s marriage law was unconstitutional because it served no “rational purpose.” Judge Kramer’s ruling was reversed in a 2-1 decision of the California Court of Appeals in October 2006. That decision, in turn, led to the pending case and yesterday’s argument.

The law under attack in this lawsuit has also been the target of the state’s legislature, which has twice approved bills that would define marriage in California as the union of any two people. Since the California Constitution only allows a ballot initiative to be rescinded or modified by a popular vote, Governor Arnold Schwarzenegger has had to veto the legislature’s patently unconstitutional actions, but the legislators have given no indication that they intend to stop trying to get rid of California’s voter-approved marriage law.

A citizen’s group, Protect Marriage California, is now working to address these threats to marriage and the rule of law by gathering signatures to place a state marriage amendment before California voters in November. This amendment would prevent any future adverse court or legislative decisions and respond if the California supreme-court rules against marriage in this case.

Since the Massachusetts Supreme Judicial Court decided in 2003 that John Adams’s Massachusetts constitution required a redefinition of marriage, every effort to convince other state appellate courts to follow this example has been unsuccessful. This includes the highest courts of New York, New Jersey, Washington, and Maryland. Thus, Massachusetts is looking increasingly isolated in this particular social experiment.

Of course, California is a big and important state, so the decision of its highest court will be closely watched. The decision may well decide whether the nation’s most populous state will endorse the message that marriage is just an adult lifestyle choice. This in contrast to an older understanding of marriage as a social institution meant to ensure that as many children as possible will have the opportunity to be raised by their mother and father in a setting where parents are committed to one another and to the children they create.

It will also indicate whether California will treat this inherited understanding of marriage as just another form of bigotry, thus stigmatizing the majority who voted eight years ago to reaffirm it.

The stakes couldn’t be much higher.

William Duncan is director of the Marriage Law Foundation

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