Update II (6/4): This just in: “California’s highest court has refused to stay until after the November election its decision legalizing same-sex marriage in the state…Conservative religious and legal groups had asked the California Supreme Court to stop its order from becoming effective until voters have the chance to weigh in on the issue…An initiative that would amend the state constitution to ban gay marriage has qualified for the ballot. Its passage would overrule the court’s decision.” (Source)
Update (6/3 @ 11:35 a.m.): I knew that as a result of this court decision, concerned Californians were trying to get an initiative on the November ballot that would define marriage as between a man and a woman. One of those 1,120,801 signatures belongs to my sister. Way to go, S! I am pleased to report that the initiative will appear on the November ballot. Tip of the beach hat to Randy Thomas.
But Californians already spoke on this issue. In the case I blogged about below, the California Supreme Court overturned Proposition 22, passed in 2000 by 61.4 percent of voters. The people speak, and the court overturns. So the voters will speak again on this issue in November. Make no mistake: this is a war, folks. Round and round and round it goes.
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Didn’t expect to see a title like that, did you? Read on, read on!
Briefly…
Last month, the California Supreme Court overturned a law prohibiting homosexual “marriage” by a vote of 4 to 3. (Download the 172-page document in PDF) The court declared that homosexual couples have the same “fundamental constitutional right to form a family relationship” as heterosexual couples. In California, marriage is considered a fundamental right. Make a mental note of that.
The court reasoned that the designation “domestic partnership,” with all the legal rights it entails, isn’t enough. Calling a heterosexual relationship “marriage” while calling a homosexual relationship a domestic partnership “poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.”
The court contended that assigning the union of two men a different name than the union of a man and a woman “raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause.” Make a mental note of that.
The court contended that “sexual orientation” is a suspect classification, therefore subject to review under a strict scrutiny standard. Under strict scrutiny, it’s almost impossible to justify any classification. For example, race is a suspect classification, and any law that treats people differently based on race will not hold up under review. The California Supreme Court has equated sexual perversion with race. Make a mental note of that.
Incestuous and Polygamous Marriages
As I read this opinion, I kept wondering when I’d run into the inevitable discussion about incest and polygamy. Those of us who oppose homosexual “marriage” often argue, with good reason, that allowing two men to “marry” opens the floodgate to allowing just about anyone to marry. I never found that discussion because there wasn’t one. Instead, there’s a footnote. A footnote. From page 79 (emphasis added):
“We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships. Past judicial decisions explain why our nation’s culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”
Wait a second. Our nation’s culture has also considered homosexual relationships “inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry,” has it not? The footnote continues (emphasis added):
“Although the historic disparagement of and discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment.”
So, a cousin marriage, for instance, or one between a man and three women is “potentially detrimental” to a family, but the “marriage” between two men is not? How did the court reach this conclusion? Anyone’s guess. How does the court justify upholding discrimination against people who wish to enter into incestuous and polygamous marriages?
Implied argument: Well, because we say so.
As the minority noted, the bans against incestuous and polygamous marriages are “ancient and deeprooted,” and so is the ban against homosexual marriage. Why did the California Supreme Court overturn this prohibition but uphold the prohibition against incestuous and polygamous marriages? If the court overturned “the equally deeprooted assumption that marriage is a union of partners of the opposite sex” with this decision, as the minority contends, it can just as easily and without sound reasoning extend the “right to marry” to incestuous and polygamous couples, can’t it? Of course it can!
Talk about a protected class! Not only may homosexuals enter into legally recognized and protected partnerships in California, the California Supreme Court just said that calling these unions anything other than marriages may be unconstitutional!
Additionally, if a court can conclude that sexual orientation is a classification on the level of skin color, can’t it conclude that consanguinity, same-sex or otherwise, also is a suspect classification on the level of skin color and subject to strict scrutiny? Of course it can! How does the California Supreme Court justify upholding discrimination against people who wish to enter into incestuous and polygamous marriages?
Implied argument: Well, because we say so.
I hope you see the point I’m trying to make. Slopes can be slippery stuff.
The minority contends – and I agree – that the four judges simply inserted their own value systems into this decision and expanded the “right to marry” to homosexuals, against the will of the people. Nothing to see here but the same old unconstitutionally decided case.
(On a biblical note to Christians, this decision won’t bring God’s wrath; it is God’s wrath. Listen to James White’s There is No Such Thing as Homosexual Marriage.)
