Friday, May 16, 2008

California S.Ct.: Same Sex Marriage Ban Unconstitutional

My legal posts usually have more to do with criminal law than civil, but yesterday's California Supreme Court ruling, 4-3, striking down the ban on same sex marriage, is noteworthy for its reliance on civil rights rulings, specifically those "anti-miscegenation" decisions which struck down interracial marriage bans forty and sixty years ago.

As the majority opinion notes, those decisions too, while rendered by a splintered court, are "judicial opinions whose legitimacy and constitutional soundness are by now universally recognized." In essence, the state can't license an activity (be it marriage, driving, hunting, etc.) and then discriminate against a "protected class" such as race, ethnicity, religion or sex (though "sexual orientation" is debated as a protected class in the ruling) when issuing those licenses.

The dissent, while noting its "sympathies" for the plaintiffs, makes the argument that these are issues better left to the political rather than judicial processes, a fair argument given our representative democracy. They also note the "irony" in the majority's reasoning: to legalize gay marriage, the court essentially had to throw out civil unions as unconstitutional.

Where this decision becomes "controversial" however is in its political and cultural implications. Politically, the "constitutional amendments to ban gay marriage" are an election year ruse designed to get those in favor of such things out to the voting booth. It's interesting that supporters of these amendments always go the amendment route, rather than the legislative route, because they fear laws banning same sex marriage are probably unconstitutional and therefore are invalid (see also: California's ruling yesterday).

Very quickly in the presidential race, both Democrats running for president, Hillary Clinton and Barack Obama, voiced their opposition to the ruling, saying they favored "civil unions" and believed that marriage was "between a man and a woman." The Republican John McCain has spoken against same sex marriage as well.

Culturally, opinion surveys still show a majority (though it is slim) of Americans against the idea of same sex marriage (Gallup, 58%; Pew, 51%). Public opinion is not necessarily relevant to the legal findings of the courts (at the time SCOTUS struck down interracial marriages in 1967, 72% opposed interracial marriage), but cultural opinions affect political opinions.

We'll see whether 2008 is a replay of 2004, when 11 out of 11 states successfully amended their constitutions to ban same sex marriage (including Georgia), and what the legal ramifications are (if any) for other states. Or whether the "issue" itself will take a backseat to "the prolonged war, an ailing economy, the mortgage crisis, and skyrocketing gasoline prices."

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