California Redefines the Family
For those of you who haven’t turned your T.V. to CNN or browsed through the New York Times over the last several days, in a 4-3 decision the California State Supreme Court found that the ban on same-sex marriage violates the “fundamental constitutional right to form a family relationship.”
A family relationship is interpreted by the California State Supreme Court to include same-sex marriage. The court has effectively overturned (bar a constitutional amendment) the interpretation of a marriage to exist exclusively between a man and woman. According to the court, the definition of the family can be extended to mean between a man and man or a woman and a woman. This ruling done in spite of the 2000 voter referendum (Proposition 22) that banned same-sex marriages.
Chief Justice Ronald George wrote for the majority:
We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, 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.
This will no-doubt give a spark to the anti-gay marriage groups (particularly the religious right) throughout America and especially in California (where already a 1.1 million person petition has been signed in favor of a constitutional amendment barring same-sex marriage). This ruling will indeed challenge the notion that there is a popular change in sentiment amongst Americans towards the issue of same-sex marriages.
This ruling flips on its head the commonly employed logical fallacy by the anti-gay marriage groups that because marriage has traditionally been between a man and a woman that it should remain forever that way forever (Argumentum ad antiquitatem – the argument to antiquity). The court has defined what the family is and between whom can a marriage be between, regardless of what has been done in the past. It’s nothing short of institutionalized discrimination to assert, via legal channels, that marriage be prohibited between same-sex couples. It’s also ignorant to think that the general movement will just wither away or disappear if the “loud minority” is ignored. As society advances and as morality evolves, the rights of human beings must be recognized and upheld. In this case, a right to equal protection under law, regardless of sexual preference. This may be a watershed in the LGBT community’s plight for equality amongst citizens, bar a California constitutional amendment.
Although statements made that court has overturned the will of millions of California voters by striking down the anti-gay marriage law are correct that doesn’t make them right. The role of the court in the American judiciary process is to act as a final arbiter to ensure that rules and laws enacted are done so in accordance with the legal scope of the ruling constitutions. That an anti-gay law, despite its popular support, is unwarranted by the state constitution is both judicious and within the powers assumed by the court.
Let me allay claims made by anti-gay marriage advocates, like Matt Barber, who said after the ruling was handed down, that “the California Supreme Court has engaged in the worst kind of judicial activism today, abandoning its role as an objective interpreter of the law and instead legislating from the bench,” by saying that the court has merely defined what constitutes a family per the language of the ruling state constitution. The court hasn’t overstepped its alleged powers by making law “from the bench.” Also worth noting is that the California State Supreme Court is made up of mainly Republican appointed justices — those not typically prone to judicial activism
If, by chance, there is a constitutional amendment passed in California, LGBT and supporters taking their case Federal is foreseeable under two Federally recognized harms:
- The acknowledgment of an individual’s fundamental right to marry. Their could be an expansion in the interpretation of what constitutes a family from the California state level to the national level.
- The classical, and particularly appropriate, claim that a ban on same-sex marriages is a violation of the 14th Amendment’s Equal Protection Clause. The argument that discrimination on the basis of sexual orientation violates a persons equal protection and should be given special attention by the court could be made.
It seems, for the time being, that there will be a change in the definition of what a family is. The response from other states and the general population to the court’s decision will be an interesting social development to document. This ruling will also test the somewhat throwaway phrase that as goes California, so goes the rest of the Nation.
http://libertyradiounderground.com/
listen to the last episode #18, and see how that matches with what you’ve said in this post
No wonder our site gets so many hits from people using search terms like “gay rights” and “gay pride.”
Good post, though. This is a very interesting development, but I severely doubt that it will last or that it could survive in the federal court system.
I’ve spent a good portion of my day on John McCain’s website reading about his stance on the issues. My favorite section is called ‘Human Dignity.’ In it, McCain says that he wants to overturn Roe v. Wade, protect marriage, and promote adoption.
This is my favorite part of the whole page:
“The family represents the foundation of Western Civilization and civil society and John McCain believes the institution of marriage is a union between one man and one woman.”
His primary stance on gay marriage, as far as I can tell, is to let the states sort it out.
Just reading over his issues page, he doesn’t seem to have many plans for anything, just words. Just words.
I don’t want to hijack your post (which is wonderful, btw), but how do log cabin republicans exist?
“The family represents the foundation of Western Civilization and civil society and John McCain believes the institution of marriage is a union between one man and one woman.”
Doesn’t the state “represent the foundation of Western Civilization.” I was reading through Aristotle’s Politics today and came across the statement that the state (the city-state) preceded the family, “since the whole is of necessity prior to the part.” I’m not sure if I entirely agree with Aristotle’s statement, but its hard to imagine the “the family” is the foundation of Western Civilization. I’ll just stop there.
how do log cabin republicans exist?
Good question. The best answer I’ve heard is that they’re Libertarians who recognize that Libertarians don’t garner as much political support in issues as do Republicans. Perhaps log cabin Republicans are Republicans minus the religious right or social conservatives. Rudolph Giuliani was probably the closest the Republicans will ever get to having a log cabin type represent the party.
I severely doubt that it will last. . .
In California, it just might (as it has in Massachusetts). Consider San Fran’s legally defiant act in 2004 to allow gay marriages.
Given the fact that it’s California, I think it has a better than average chance of lasting, and quite possibly being influential in future States decisions.
http://www.slate.com/id/2191530/
You guys may be right about it lasting in California, and I hope so; but I still have my doubts.
California may have some of the most liberal cities in the country, but it can also be shockingly conservative as a state overall. Since 1900, they have only elected 4 Democratic governors, and the only one to be elected in the past 20 years was recalled by the angry citizens.
Gay rights is a tough political issue to step up to the plate on because the constituency that it directly affects is a ridiculous minority and even a lot of the abstract (straight) supporters of gay rights often cringe if they think about it too much.
I would be interested to hear what Chris, our resident Californian-conservative, has to say about this. Is he still around this blog?
I would love to hear what Harding faculty members think of this. I suspect many will have to tow the company line.
I have always seen California as a conservative state. If you look at the way local matters are dealt with, this notion of liberalism is more of a myth than a reality. If you look at the states treatment of matters such as welfare, affirmative action, minority contracts, and education — it has clearly moved in a more conservative direction. Outside of Cali we tend to think of Hollywood and San Francisco which does not represent the local base.