The California Supreme Court just announced its ruling that California statutes limiting marriage to a man and a woman are unconstitutional. Now, same-sex marriage is also allowed.

The majority opinion clocks in at about 120 pages, which is going to take a long time to digest, consider, and properly evaluate. But a few items quickly jumped out:

First, the Supreme Court seems to heavily rely upon the analysis that since the legislature has recently expanded the statutory rights of domestic partners so that they are now tantamount to the rights of married couples (taxes are one notable exception), such that in substance a marriage and domestic partnership are the same, this creates a constitutional problem by not giving domestic partners full marriage rights.

There is a footnote noting that without a domestic partnership law the ruling by the court could have been different in various respects.

That analysis is significant. I predict that it will have unintended consequences in the years and decades ahead in a number of cases and situations not contemplated by the court.

It is hard to imagine that the legislature is able to overturn a voter initiative stating marriage is only between a man and woman, and create a situation where over 150 years of statutes and legal precedent are unconstitutional, by passing a new law.

Second, the court gives short thrift to an argument that the California constitution does not state that marriage is between a man and woman.

Initially, the court notes that the California constitution does not explicitly define marriage as being only between a man and a woman.

That is because some things were considered so basic and obvious that a definition was not required!

The court concedes elsewhere in its opinion that historically marriage has always been considered to only exist between a man and a woman. To assert that since a basic and universal understanding is not specifically spelled out, it thus does not exist in the constitution, is intellectually demeaning and contrary common sense.

As noted in footnote 69 (ironic for a sex-based case), the court notes California constitutional provisions used to specifically refer to a husband and a wife. Changes to the language were not intended to change the core reference point, nor was that asserted by any party.

However, the court said briefly, without authority or explanation, that over the years the legislature has affected numerous changes to the “institution of marriage” as it existed at old common law. Therefore, there really is no definition of marriage, and the “statutory” definition of a man and woman is unconstitutional.

I strongly disagree with the reasoning. While there have been legislative changes within the construct of marriage, such as clearly equating the rights of the man and the woman, the “institution of marriage” has not changed. It has always been between a man and a woman. Changing policies and laws within the construct of what marriage is considered to be is not same as changing the construct so that it has no constitutional meaning.

In my opinion, the court should have ruled that the concept of marriage is, and always has, been meant to be between a man and woman. This is true constitutionally, as reflected in the language of the original constitutional, in prior court opinions interpreting the constitution and statutes which referred to a man and woman, and in the interpretation of those drafting the constitutional terms.

Then, the court would have ruled that same sex marriage is not allowed in California unless the constitution is changed.

In my opinion, that is the better way for the issue to be resolved. For the legislature and/or the public to effect a change. Not a 1-margin vote by a court.

Also, it should not take over a 100 pages to justify a position.

On the other hand, the court’s analysis to racial issues, such as the former statutory prohibition in California against inter-racial marriage is persuasive, thought provoking, and will undoubtedly be pointed to analytically in the future. On the federal level, it took the courts to end eliminate various types of racial discrimination – discrimination that neither the legislatures nor the public majority would have ended.

Still, it seems that all too often important constitutional decisions are made by chance – the US Supreme Court comes to mind. Opinions are tightly split by just one vote. The decisive one vote depends on which political party has had the opportunity to appoint the judge. If Democrats have happened to appoint a majority of the judges the constitutional ruling swings one way. But, if by happenstance Republicans have appointed a majority of judges when the decision is to be made, the constitutional ruling swings the other way. It is so unsatisfying to see important, one-vote decisions.

It is interesting that the court tries to diminish the impact of rulings in many other courts reaching contrary decisions, noting that they were often by one-vote majorities. Ironically, this is just a one-vote decision.

In California, a majority vote by the legislature or public is insufficient to change the constitution. But it is sufficient for the court.

Finally, the mess. United States federal law clearly states that marriage is only between a man and woman, which the California Supreme Court notes. This means a same-sex marriage in California will apply one set of laws to the couple, but federal law will apply other laws. Taxes, benefits, etc., will be nothing short of a mess. While it is true that California law in many respects, such as the tax code, does not currently track federal law completely, it is close, and does not create anything near the practical mess this ruling will create for many persons.

This is obviously not a factor for a court in deciding a state constitutional issue. But a whole new cottage industry for lawyers will be created to deal with this.

It should also be noted that the court differentiated between government sanctioned marriage and religious marriage. This is interesting, especially since (I believe) most marriages involve a religious component and not simply paying a fee with the county. I always considered the marriage to commence when the couple said “I do” before a priest, further reflection indicates this is not necessarily what the government requires.

A couple can be married in the eyes of the law, but not married in their religion, and vice-versa. Can a church refuse benefits / services to a same-sex married couple that it provides to a traditional couple per its religious beliefs? Expect some interesting twists and litigation on this issue.

California Gay Marriage Ruling – What a Mess
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