California Allows Gay "Marriage"

I caught the NY Times' Alert on California's supreme court ruling that "marriage" cannot be defined as between merely a man and a woman. The text of the ruling (175 pages) is a bit of a morass and the key statements are on pages 10-12 (final majority rationale), 122-127 (Concurring Opinion), and 154-161 (dissenting opinion). Overall, this story is a bit overblown because California already provides all the benefits of marriage to homosexual couples without the title "marriage." However, it does rely on the weak idea that the government has no interest in preserving a legally ineffective code and/or a harmful code. I argue that the stronger defense is that the government has an interest in eliminating unjust discrimination in its legal code when the law is otherwise non-discriminatory.

Question of Law: The central question is whether the state has an interest in maintaining the titles "domestic partnership" and "marriage" in light of the fact that they are legally coextensive (having the same rights and obligations).

Majority Opinion: The state has no compelling interest in maintaining "marriage" as merely between a man and a woman for four reasons. First, excluding homosexuals from "marriage" does not protect their rights and obligations and will not change the rights and obligations of those who are marriage. I think this is a weak reason because, in reverse, there is no a priori serious interest in removing the domestic partner/marriage distinction for the same reason that both have the same rights and obligations. The other three reasons are where the crucial issues lie.

What's in a Name?: The court argues that separating "domestic partnership" and "marriage" is a separation by name only in the eyes of the legal code. In California, this is absolutely true given their Domestic Partnership Act. In effect however, such a conceptual distinction will, the majority argues, harm homosexuals and their children by maintaining a state-endorsed doubt, otherness, and second-class status on homosexual families. I completely agree with the spirit of this given how tumultuous the fight over homosexual marriage has been. Indeed, the resistance to homosexual marriage is based on a sense of exceptionalness and sanctification of heterosexual relationships that set them beyond what a homosexual relationship can ever be. The question then is whether this differentiation really gives the government an interest in preserving or removing the domestic partnership/marriage distinction.

Public Opinion and State Interests: Public sentiment is a crucial component of legal reasoning when the question at hand deals with social acceptability. In cases surrounding the death penalty and cruel and unusual punishment, there have been a number of arguments surrounding whether or not punishments are morally tasteful in the contemporary culture. Some have argued that we will become more and more humane as we "civilize" pointing to the disuse of drawing and quartering, the electric chair, and torturing. In such cases, the courts should reflect public sentiment in their ruling where constitutional law is too vague or precedent has been based on such sentiment. This reading implies that the domestic partner/marriage distinction should be maintained until American becomes more understanding and accepting of homosexual relationships. On the other hand, in the case of segregation, the courts had to contradict public opinion in the face of blatant constitutional violations. The courts had to lead society rather than vice versa. This reading implies that if the DP/M distinction leads to constitutional violations, then it must be corrected. Let's look at these and see which is the case and what it means for the homosexual marriage debate.

Conundrum in Opinion and Judicial Activism: Public sentiment was not cited as a precedent in either majority or dissenting opinion. The constitution is vague about separate but equal statuses, with the Brown v. Board decision giving us some keys to the logic behind such decisions. At present, whether there are significant illegal discriminations against domestic partners despite their legal status or because of it, is unknown to me. Legal ambiguity gives us reason to look to public opinion. However, public opinion indicates discrimination. So, we're at a crossroads in legal argumentation: the state has an interest in following public opinion given the law's ambiguity but such an opinion is clearly discriminatory. The majority opinion says that such a status will cast doubt on the dignity of such relationships and impose a second-class status on homosexual relationships, giving the state no interest in preserving the DP/M distinction. However, this is a matter of public sentiment that cannot in itself be directly influenced by eliminating the DP/M distinction. Thus, as I stated earlier, the state can have no interest in either maintaining or repealing marriage as only heterosexual. I directly disagree with the majority opinion in this.

Why "Marriage" Should be Open in CA: Where discrimination prevails in public sentiment, the law does have an interest in sanitizing itself from injustice. In the case of the judicial branch, courts have a prerogative to eliminate unjust discrimination to the extent that it does not conflict the legislatively dictated constitution and/or law. In CA, the legislature has created perfectly equal but separate classes based on an unjust popular sentiment discriminating homosexual from heterosexual couples. I say unjust because of the lack of significant empirical evidence for separating heterosexual from homosexual relationships under the law beyond public sentiment itself. As the opinion claims, there is no difference in how heterosexual and homosexual couples execute the rights and responsibilities that constitute the classification of a married couple. The judiciary does have an interest in eliminating the DP/M distinction where both are substantively the same in order to relinquish the discriminatory and defamatory nature of the distinction. In a state which legally equalizes groups in all but name, there is an imperative to unify the nomenclature if it is based on discrimination. This is not true in the case of protected group status where groups are not equal in society and extra measures must be taken to ensure and protect equality. While homosexuals deserve protected group status, such laws have not been applied to marriage as far as I know.