The language and reasoning used will make it easier for other like minded justices in other states to support gay marriage when it is their turn.
Additionally, this decision gives an indication and precedent (along with Massachusetts) to the US Supreme Court for consideration when the issue arrives at their door.
The brief does not attempt to re-define marriage per se in California. It simply states that Marriage was not specifically defined as "between a man and woman" until the 1970's, and was only ASSUMED to mean as such prior to that time (and any indication otherwise was for the purposes of property rights for a "husband" or "wife."). And regardless of the assumed meaning, it does not support "equality under the law" as written (the court refers to interracial marriage as a first precedent towards marriage equality under the law).
The court recognised, and rightly so, the difference between the civil marriage institution and the religious marriage institution, clearly reaffirming the separation of Church and State. They clarified again that the church does not have to perform the marriage ceremony for gay couples, if they don't want to. (Of course the Church was on the 11 o'clock news saying not to worry, they won't perform the ceremony!)
There were some interesting connections that I, personally, had never made before. One in particular was on point:
the argument that same sex marriages would destroy the primary purpose and function of marriage which is procreation (child birth).
The court observed, rightly, logically and truthfully, that straight couples more often accidentally conceive, whereas gay couples must plan to conceive and that straight couples avoid conception through the use of birth control. Therefor, the argument claiming the destruction of the primary purpose of marriage falls down, because straight people can get married, but are not obligated under the state marriage license to have children!
Touche!
Much of the brief made intimate references to state and federal law, and reached out across the Nation and the World for other legal writings and rulings that spoke to this topic.
The court also made mincemeat out of the argument of an initiative statute: changes in law voted in by the people. They clarified how any initiative statute that violates the State constitution is invalid.
If the people of California vote to change the Constitution to make marriage only between a "man and a woman", as they will attempt this November, and, should they win, then the ruling will be overturned. And of course, the next step will perhaps be the United States Supreme Court.
The 1st dissent, which was only partial, seemed to be grasping at straws. The legal arguments where empty and without solid reasoning or integral foundation. The dissenter seemed to be providing a bit of kindling to a fire that is being put out.
This dissent supports California's Domestic Partnership Act, which, on the face, is "separate but equal"-though not really equal, because, as it is pointed out time and again, the DPA provides virtually all rights as straight married people. This dissent relied on the Federal DOMA for support.
Further, this dissenter is really upset about using the word "marriage" for gay people. That seems to be the real issue. A label. He provides no legal reason to deny the marriage term for both hetero and homo marriages, and relies only on dictionary definitions and the historical acceptance of the term in the common populace.
The dissent argues that "The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history," -- this isn't entirely true. The historical fact is that gay marriages were common place amongst men in the European aristocracy and religious sects, and were performed by the Holy Roman Catholic Church and other religious practitioners for a "fee" and political favor.
The homosexual relationship was historically common place in society and only began to fall out of favor when the "accusation" of being gay was used as political ammo against an opponent. Women, of course, were excluded from this consideration. What is "novel in our recent history" is the word Homosexual, which was coined in the 1860s. Just because it didn't have a modern term doesn't mean it didn't exist prior to the creation of that term.
The 2nd dissent: is a full dissent and clearly does not like or want the word "marriage" used for gay people. This person thinks that the DPA is enough to give gay people married rights without using the word "marriage" and without creating a socially inferior 2nd class status for gay marriage. That is a "separate but equal" view point. This cannot hold because domestic partners do not have full equality with straight married people under the law.
The dissenter rightly points out that gay people do not have any FEDERAL rights as domestic partners and any rights conferred in this regard for marriage by the state are not and will not be recognized by the federal government. Supporting this point is the fact that the state, in regards to federal tax filings, will have to make separate distinctions from "straight and married" to "gay and married," which in itself is a privacy violation in both the state and federal Constitutions.
The legal arguments focus on what is or is not a protected class, and if gay people qualify for that status under the California constitution. Additionally, the dissenter thinks that the gay marriage issue is improperly decided by this court at this time and should, instead, defer itself until society catches up with the court.
This is really about using the word marriage for gay people, which the dissenter points out is reserved specifically for opposite sex civil unions. If language is specifically reserved for one class, denying another class, who is similarly situated, then that is unequal in the law and the California Supreme Court rightly corrected this wrong.
This ruling by the court is not a step down a slippery slope, rather a building block towards the future for true equality for all citizens under the law of this great state.
Please share your thoughts, concerns, and ideas.
Please share your thoughts, concerns, and ideas.
