same-sex marriages

WaPo reports that a trial judge in California has ruled that a statute banning same-sex marriages is unconstitutional. [registration required]. The judge compared " it to archaic laws that once blocked interracial marriage and promoted ‘separate but equal’ segregation." When this case makes it’s way to the California Supreme Court – and it will – CA might become the second state in the country to legally require same-sex marriages (MA being the first).

The issue is

whether Family Code section 300, which provides that a marriage in this state is a union between a man and a woman, and Family Code section 308.5, which provides that only a marriage between a man and a woman is valid or recognized in California, violate California’s Constitution.

The judge ruled that the cases could be decided based on the equal protection argument. The court applies strict scrutiny to the issue and concludes that there is no legitimate governmental interest. Despite that, the Court engages in an analysis of the statutes under both the rational basis test and the strict scrutiny test. The Court writes:

Further, this court concludes that under either the rational basis test or the strict scrutiny test, Family Code sections 300 and 308.5 fail to meet constitutional muster. Accordingly, in the interest of a full analysis of the issues, each test will be applied.

The state raises two rational legitimate purposes:

1. Opposite sex marriage is so deeply rooted in the state’s culture and history that the courts should not redefine it to what it has never been.

2. It’s tradition and California has provided a remedy: virtually all the protections of a man/woman marriage and yet protecting the definition of marriage.

The court dismisses both. The court explains

In this context, the existence of marriage-like rights without marriage actually cuts against the existence of a rational government interest for denying marriage to same-sex couples…. [these rights belie] any argument that the State would have a legitimate interest in denying marriage in order to preclude same-sex couples from acquiring some marital right that might somehow be inappropriate for them to have.

The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal.

The court then moves on to strict scrutiny. The state argues that there is no suspect classification and no discrimination because the sections apply  equally to both genders and thus neither gender is segregated for discriminatory treatment. (Ed note: Hah!). The court likens these arguments to those in cases dealing with anti-miscegenation laws. The court relies on Perez v. Sharp, 32 Cal 2d. 711 and Loving v. Virginia, 388 U.S. 1. (we reject the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all individual racial discriminations….")

In addition, the court finds that the Family Code sections violate a fundamental right: the right to marry. Thus,  the court applies strict scrutiny:

In its rational basis analysis, this court has determined that the State’s two rationales do not constitute a legitimate governmental interest… It is axiomatic that such rationales could not therefore constitute a compelling state interest.

The court finally acknowledges that other states have considered this issue under a due process analysis and an analysis of the state interest in procreation.

The full decision can be read here. [pdf required]

The CT legislature’s judiciary committee is  holding a hearing on recognizing civil unions for same-sex couples today. Besides the obvious conservative opponents, there will also be opposition from a surprising group: the gay rights establishment. They say they are opposed to civil unions because they will settle for nothing less than same-sex marriage legislation.

For the past year or so, I have been dumbfounded by this particular debate. I see this as the weakest of the ‘hot-topic’ issues in our society today (others being the death penalty, abortion, social security). I do not understand what the hubbub is all about. Two men or two women marrying affects my life as much as Paris Hilton’s dog marrying Nicole Ritchie’s parrot.

I’m straight. Looking at gay men getting married isn’t going to make me not want to marry. It isn’t going to make me turn gay, much less want to marry a gay man. It simply does not affect my life. Opponents argue that marriage is defined as ‘between a man and a woman’.

Sure it is. But the question is by whom is it so defined? The meaning attributed to words can change over the course of time, with changing social mores. Undoubtedly, society’s perception of homosexuality is changing. I don’t even see it as a debate about marriage. I see it as a debate about the freedom of choice. If they choose to marry their loved one, who am I to say otherwise?

If you want to paint it as a religious no-no, then the argument against same-sex opponents becomes stronger. One of the great pillars of this society is the freedom of religion. If your religion prohibits you from "being" gay, then don’t be! That belief should in no manner be imposed onto someone who doesn’t subscribe to it.

As Jon Stewart put it, if you see a man having sex with a pinata, will that make you want to have sex with a pinata too? No. So why is homosexuality any different? I ask any and every one of you: How does same-sex marriage affect your individual life? I venture to say that the answer for all is the same (unless you’re gay): It doesn’t.

It’s a non-issue.