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.
Press accounts in the San Francisco Chronicle and elsewhere, which insistently describe the California court as “centrist,” point out that all but 1 of the 7 justices were appointed by Republican governors. Yes, the GOP is the party responsible for the court that produced this decision — a Federalist Society for California anyone? That way at least we’d have a shot at knowing whether the Republican governors who appointed the moral equivalent of David Souter did it on purpose or not.
The decision does contain one small legal victory that may prove important down the road. Plaintiffs argued the language of Prop 22 prevented the recognition of same-sex marriage performed outside of California but not (they argued) same-sex marriage inside of California. All seven justices clearly rejected this view. A proposed California marriage amendment for the ballot this November merely takes the language of Prop 22 and puts it in the state constitution. The measure is awaiting certification by the secretary of state’s office, but the 1.1 million signatures turned in should produce far more than the 690,000 valid signatures needed to qualify. The opinion makes it clear that if this language is approved by 50 percent of voters this November, marriage in California will continue to be defined as the union of one man and one woman, regardless of what other jurisdictions do.
Culturally, California is about one third of the nation. If this ruling goes unchallenged, gay marriage will be not a minority institution in one state, but the official marriage regime for a plurality of U.S. citizens. The sheer volume of same-sex marriage cases that could emerge out of California could also encourage state courts to expand recognition for same-sex marriages performed outside of their borders, at least in states without marriage amendments or statutory DOMAs.
Politically, the new prominence of the gay-marriage issue may (unexpectedly) redound in McCain’s favor. All candidates say they oppose gay marriage. Obama and Clinton support federal civil unions. The problem for McCain in exploiting this difference is that he actually voted against a federal marriage amendment (on federalist grounds); However, in 2006 McCain taped a television ad supporting the Arizona state marriage amendment in Arizona. This March, McCain told NOM California’s executive director Brian Brown at a fundraiser that he would support the California state marriage amendment, and presumably the amendment on the ballot in Florida this November. McCain also supports the 1996 federal Defense of Marriage Act which defines marriage for federal purposes as the union of one man and one woman. Obama’s and Clinton’s promises to repeal all or part of the federal Defense of Marriage Act may also help make marriage an asset to McCain’s underdog campaign.
Fortunately, voters in California, unlike Massachusetts, will have a chance to join the 27 states that have protected the definition of marriage in their state constitutions. Working with Protect Marriage, NOM California (a project of the National Organization for Marriage, of which I am president) raised almost $1 million and helped gather 1.1 million signatures to put the language of Prop 22 into the state constitution.
As NOM California’s executive director Brian Brown put it, “In California, activist judges won’t have the last word on marriage, voters will.”
– Maggie Gallagher is president of the National Organization for Marriage which sponsored NOM California, a ballot-initiative committee which, working with Protect Marriage, recently raised almost $1 million and helped collect 1.1 million signatures to put a marriage amendment on the ballot in California this November.