California Supreme Court Backs Gay Marriage

I've long thought that marriage should be defined by our culture rather than by the state. However, the main problem with this approach is that marital status has implications in virtually every area of private law. The state's involvement in marriage goes far beyond marriage licenses and taxes. It has implications in contract enforceability, tort privileges, and duties to act under both tort and criminal law. Most importantly, of course, are its implications in child custody and in property.

If the state doesn't define who is married and who is not, then how would these issues be resolved? If a couple that consider themselves married acquire property and then, later, split up, how does one decide who has title to what, particularly in a community property jurisdiction rather than one that follows the common law approach?

I agree that issues concerning private sexual relationships between consenting adults do not belong in our criminal courts. However, I don't see how we'd ever be able to remove marital issues from our civil courts.

I suppose one solution would be to abolish consideration of marital status from all areas of the law. Paternal rights would be adjudicated irrespective of marriage. Community property, common law and statutory dower and curtesy systems, and tenancies by the entirety would be abolished. That, of course, would be a more dire attack on the institution of marriage than gay marriage itself.

So you didn’t follow the link. That’s a shame. Facts are contained within. Facts are good.

I followed the link and found zilch to back up your implication that same-sex "marriage" has any kind of historical basis in Western civilization. Unless you count Greek pedophilia (not marriage, and pretty sick) and a couple of insane, power mad Roman emperors who "married" their boyfriends, which was in violation of the law and universally ridiculed, you're just plain out of luck. Some leftists have tried to argue that various "brotherhood bonds" throughout history, where men vowed friendship or comradeship, were "same-sex 'marriages'", but of course they weren't.

Just a thought for you: How hard would it have been to find someone in, say, 1948, who’d claim, “until the total loss of our common sense in recent years, marriage has never been between people of different races.” Not very hard, I bet. In fact, as I mentioned earlier in the thread, 90% of people opposed interracial marriage at that point, according to the poll data. If left to a vote, interracial couples who wanted to marry would have been out of luck.

You might want to try using logic instead of appealing to non-analogous situations. Attitudes toward interracial marriages have varied throughout Western history. People of different races can mate and produce offspring. Individual races can also form nations and societies that are distinct from those of other races. This sometimes creates a conflict where some people say "race shouldn't matter" while others say "yes, race does matter, those other races create different cultures than our own".

That's a normal debate that might occur in any society. But homosexuals cannot create a nation or reproduce among themselves. Therefore, the idea of same-sex "marriage" is ludicrous. It's as ludicrous as human-animal "marriage" or human-inanimate object "marriage".

I'll let Justice Graffeo answer you:

While many U.S. Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage right as involving a union of one woman and one man ( see e.g. Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma, 316 US 535 [1942]).

Plaintiffs' reliance on Loving v Virginia (388 US 1 [1967]) for the proposition that the U.S. Supreme Court has established a fundamental "right to marry the spouse of one's choice" outside the male/female construct is misplaced. In Loving, an interracial couple argued that Virginia's anti- miscegenation statute, which precluded "any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian" ( id. at 5 n 4), violated the Federal Due Process and Equal Protection Clauses. The statute made intermarriage in violation of its terms a felony carrying a potential jail sentence of one to five years. The Lovings -- a white woman and a black man -- had married in violation of the law and been convicted, prompting them to challenge the validity of the Virginia law. The Supreme Court struck the statute on both equal protection and due process grounds, but the focus of the analysis was on the Equal Protection Clause. Noting that "[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States," the Court applied strict scrutiny review to the racial classification, finding "no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification" ( id. at 10-11). It made clear "that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause" ( id. at 12). There is no question that the Court viewed this anti-miscegenation statute as an affront to the very purpose for the adoption of the Fourteenth Amendment -- to combat invidious racial discrimination. In its brief due process analysis, the Supreme Court reiterated that marriage is a right "fundamental to our very existence and survival" ( id., citing Skinner, 316 US 535, 541) -- a clear reference to the link between marriage and procreation. It reasoned: "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes . . . is surely to deprive all the State's citizens of liberty without due process of law" ( id.). Although the Court characterized the right to marry as a "choice," it did not articulate the broad "right to marry the spouse of one's choice" suggested by plaintiffs here. Rather, the Court observed that "[t]he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations" ( id. [emphasis added]).[2] Needless to say, a statutory scheme that burdens a fundamental right by making conduct criminal based on the race of the individual who engages in it is inimical to the values embodied in the State and Federal Due Process Clauses. Far from recognizing a right to marry extending beyond the one woman and one man union,[3] it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.[4]

Give it up. You’re dealing with a typical libertarian who would let this country turn to anarchy before admitting that one of her theories or ideals wasn’t a good idea.

As for the US Constitution, the equal protection clause was not added to address the issue of sexual orientation. It was primarily about race. No doubt it’ll soon happen, but homosexuals should not be treated as a “suspect class” under the US Constitution unless a constitutional amendment is passed that either supports the leftist view of a constantly expanding idea of equal protection or explicitly guarantees protection against laws regarding sexual orientation.

And yes, that means that I think the proper way to have addressed the issues of gender would have been an amendment to the Constitution, not a series of judicial decisions based on a rather flimsy rationale. If the ERA would have explicitly left out the issue of abortion, it’d have been a darn good idea.

Continued from above:

As Justice Robert Cordy pointed out in his dissent in Goodridge v Dept. of Public Health (440 Mass at 381-382 [Cordy, J., dissenting]):

“Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of civil society . . . Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated and socialized. . . [A]n orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.”

Since marriage was instituted to address the fact that sexual contact between a man and a woman naturally can result in pregnancy and childbirth, the Legislature’s decision to focus on opposite-sex couples is understandable. It is not irrational for the Legislature to provide an incentive for opposite-sex couples — for whom children may be conceived from casual, even momentary intimate relationships — to marry, create a family environment, and support their children. Although many same-sex couples share these family objectives and are competently raising children in a stable environment, they are simply not similarly situated to opposite-sex couples in this regard given the intrinsic differences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.

As respondents concede, the marriage classification is imperfect and could be viewed in some respects as overinclusive or underinclusive since not all opposite-sex couples procreate, opposite-sex couples who cannot procreate may marry, and opposite-sex partners can and do procreate outside of marriage. It is also true that children being raised in same-sex households would derive economic and social benefits if their parents could marry. But under rational basis review, the classification need not be perfectly precise or narrowly tailored — all that is required is a reasonable connection between the classification and the interest at issue. In light of the history and purpose of the institution of marriage, the marriage classification in the Domestic Relations Law meets that test.

From Anderson v King County: Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. In Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), involving invalidation of a nonconsensual sterilization statute, the Court said “[m]arriage and procreation are fundamental to the very existence and survival of the race.” In Loving, 388 U.S. at 12, the Court said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (quoting Skinner, 316 U.S. at 541). In Zablocki, 434 U.S. 374, the Court invalidated on equal protection and due process grounds a statute that prohibited marriage for any resident behind in child support obligations. The Court noted that [i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. . . . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. Zablocki, 434 U.S. at 386. The Court also quoted the statements made in Skinner and Loving. Zablocki, 434 U.S. at 383, 384. See also, Maynard v. Hill, 125 U.S. No. 75934-1 (consol. w/75956-1) 30 190, 211, 8 S. Ct. 723, 31 L. Ed. 654 (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”).... But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.

Your own wikipedia list defeats your argument.

Did you not notice that prior to 2004 marriage was universally defined as the Union of a MAN and a WOMAN. None of the "drastic changes" that you claim involved a change in that fact.

I hate to break it to you, but if Marriage is not linked to procreation, AS VIRTUALLY EVERY UNITED STATES SUPREME COURT CASE TO ADDRESS THE ISSUE HAS INDICATED, then there is no business for government to be involved in issuing marriage licenses in the first place.

Government only licenses marriage because the basic assumption is that children will/can result from the union and government has an obligation to protect and encourage behavior that will result in the furthering of civilization and the human race.

Government doesn't license marriages to endorse a particular union.

Homos can't reproduce. You can't change that basic biological fact. And no, the fact that some couples cannot have children does not change the basic biology involved.

We can post excerpts from court rulings all day, if you like. It doesn’t seem like such a great idea for your side, though, considering half the posts in this thread are rants against the habit of courts to rule in favor of same-sex marriage.

Here are some excerpts from Goodridge vs. Department of Public Health (the majority opinion):

MARSHALL, C.J. Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, 32 Cal. 2d 711, 728 (1948), or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967).[16] As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra at 717 (”the essence of the right to marry is freedom to join in marriage with the person of one’s choice”). See also Loving v. Virginia, supra at 12. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance — the institution of marriage — because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.[17]

The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. See Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424 Mass. 586, 590 (1997); Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 416 (1973). That the Massachusetts Constitution is in some instances more protective of individual liberty interests than is the Federal Constitution is not surprising. Fundamental to the vigor of our Federal system of government is that “state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995).[18]

The individual liberty and equality safeguards of the Massachusetts Constitution protect both “freedom from” unwarranted government intrusion into protected spheres of life and “freedom to” partake in benefits created by the State for the common good. See Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 273 (1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (1971). Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family — these are among the most basic of every individual’s liberty and due process rights. See, e.g., Lawrence, supra at 2481; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Roe v. Wade, 410 U.S. 113, 152-153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Loving v. Virginia, supra. And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations. “Absolute equality before the law is a fundamental principle of our own Constitution.” Opinion of the Justices, 211 Mass. 618, 619 (1912). The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage.

“Homos can’t reproduce. You can’t change that basic biological fact. And no, the fact that some couples cannot have children does not change the basic biology involved.”

Homosexual couples can and do reproduce, and have many of the same options available as any infertile heterosexual couple. What “basic biology” are you talking about? Want to be more specific? You write with such passion, but you don’t back up your statements. If you do believe marriage should only be permitted between individuals who can and will produce biological children without intervention, then you must believe infertile heterosexual couples should be denied the right to marry. And if you don’t, why? You can’t just say “because!” You have to come up with a reason.

I agree with you, though, the government may have no business issuing marriage licenses in the first place. That would be a good solution at this point. Take out the word “marriage” from civil unions and leave that to religions. Give opposite and same-sex couples civil unions/domestic partnerships/what-have-you for legal purposes.

I guess we’ll have to institute some sort of fertility test before handing out the marriage license, eh?

I addressed this issue in an earlier post, but I'll address it again here. Nature has provided us with two (count 'em, two) sexes. Each sex is about 50% of the population in any given nation. Those sexes are complementary to one another, meaning they're opposites. They produce genetic material (sperm & ova) which possess half of a full DNA complement. Combined, this material can produce a new DNA and thus a new human being. Even before we knew the exact nature of DNA, people had enough common sense to understand that the opposite sexes can mate, while two people of the same sex cannot.

Now, invariably in these debates, someone pops up and asserts that not every heterosexual pairing can produce offspring. That's true, but reproduction isn't the only purpose of the marital bond. Another purpose is to encourage a man to bond to a woman and to use his superior physical strength and aggressiveness to protect her. Women are the bearers of future members of the species. They civilize men, and men in turn protect women so that the species can carry on. Even if a particular marriage doesn't produce offspring, it's still symbolic to our young people of the nature of humanity and the responsibilities we have to society.

You're defining marriage to be something it is not, and cannot logically be, for no other reason than that you think it would be, like, totally cool, and like, fashionably tolerant, to do so. But two people of the same sex cannot form a marriage. To call it a marriage is to redefine the term to mean something antithetical to what it was intended to be.

It takes sperm and an egg, yes. Two of my friends had babies in the last few years using donor sperm. One is in an opposite-sex marriage, one is in a same-sex marriage. In both cases, the child is biologically related to only one parent. Both children, I assure you, have the “new DNA” of which you speak. How do you deny marriage to one of these couples, and allow it for another, if both conceived by the same means? You’d have to concede that the reproductive capabilities of the couple are not an issue. So, you’ve lost that argument.

In your second paragraph, you say reproduction is not the only purpose of the marital bond. Then you channel Fred Flinstone for a bit, but that’s okay. You finally make this point: “ Even if a particular marriage doesn’t produce offspring, it’s still symbolic to our young people of the nature of humanity and the responsibilities we have to society.” That’s a very good argument for allowing gay couples the same rights we allow straight couples. It’s symbolic of the responsibility we have to treat people fairly and equally in our society. Good point!

That said, if the word “marriage” is what trips you up, as I’ve said before, I’m all for keeping the government out entirely. It’s a loaded term best left for religions to address. The government can grant equal civil unions, and people can get married in the church of their choice. Government recognition of the “marriage” is unnecessary.

That’s about enough.

Taking your argument and extending it, why on Earth should the government have civil unions at all? If you’re really a libertarian and not a leftist troll, then you probably don’t support tax breaks for married couples, government health insurance, and the like. Why should there be a thing such as joint filing? As for “divorce”, why shouldn’t each person’s property belong to him/herself when people decide to split up? What’s the libertarian justification for alimony or child support? Why couldn’t joint ownership of a home be handled on its own without the obsolete ideas of “union”? Come on now, live the libertarian dream. Every person for himself.

Also, on the issue of this California decision, let’s just get to the chase, because whether or not one supports this decision isn’t the real issue. The only issue most non-Californians give a dang about is whether the federal courts will eventually shove gay marriage down their states’ throats. In light of that, do you think the US Constitution requires states to give marriage licenses to gay couples if they make them available to straight couples? That’s what this is really about.

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