On May 15, 2008, the Supreme Court of California released a rather ponderous (172 pages, double spaced) decision In re MARRIAGE CASES. The decision has enough footnotes and dissenting/concurring opinions that only a recovering attorney could love it. It will doubtless inspire numerous scholarly and insightful law review articles, which this neither is nor pretends to be.
The Court declared that legislation adopted pursuant to popular referendum to the effect that "marriage" can take place only between persons of different sex violates the State Constitution. It was careful to point out that it was doing so even though the same substantive legal rights and obligations of those in heterosexual marriages inure to persons engaged in civilly recognized same-sex civil unions. The basic premise of the decision was that this fact notwithstanding, people who are married are accorded a different social status than people in civil unions, which is not permissible under the California Constitution. This decision was based on an implicit, rather than an explicit, provision in the California Constitution guaranteeing the right to "marriage;" the decision thus may have little, and perhaps nothing, to do with people neither living in nor desirous of moving to California; or then again, it might.
Legal analysts say Thursday's court ruling could have wide-ranging implications for other US states, noting the California Supreme Court's history of landmark rulings.
"The California Supreme Court's example is often emulated and it often is sort of a groundbreaker," said David Cruz, a law professor at the University of Southern California and an expert in constitutional law.
On the other hand, at least one gay rights activist hopes not.
Despite the facially rather limited extent of the decision, headlines such as California's Supreme Court declared gay couples in the nation's biggest state can marry" were rampant. It was also pointed out that efforts were already underway to amend the California Constitution to obviate the Court's decision.
I respectfully (?) dissent from the Court's decision, because it is very poorly reasoned and more than likely fraught with unintended consequences. Even though it purports to interpret only the California Constitution, it may easily be stretched to other venues, conceivably even to the United States as a whole via the due process clause of the Fourteenth Amendment. In addition, a homosexual marriage countenanced under the California Constitution as now interpreted, may well, under the full faith and credit provisions of the U.S. Constitution, be required to be recognized by states lacking an implicit constitutional provision such as that found by the California Supreme Court in the California Constitution. Would a state which fails to recognize same sex marriages be required to offer same sex divorces? I don't know. And, even if the California Constitution should be amended to obviate the decision of the Court, the rationale of the decision may retain sufficient life to have impact on both State law in general as well as Federal law.
Marriage is a religious sacrament with religious consequences
Interestingly, the California Court's decision does not discuss whether marriage is a religious sacrament, or note that religious groups have the freedom to define their sacraments, including that of marriage, as they wish. Indeed, the word "church" appears only in the list of counsel appearing before the court; the word "sacrament" appears only as part of the word "Sacramento."
Some churches are willing to perform marriage ceremonies between homosexual couples, some are not. Some accept homosexuals as members of their clergy, some do not. The Roman Catholic Church accepts only unmarried male priests. To the extent that churches elect to define marriage as between people of the opposite sex or otherwise, they have heretofore had every right to do so — just as they have traditionally had every right to define the procedures for, and consequences of, other religious sacraments, such as receiving communion, baptism, etc. Some churches impose various pre-conditions to marriage: counseling, participation in one or more religious ceremonies, including confession and taking communion, etc. Any requirement, and I have not seen any thus far seriously discussed, of legally requiring, for example, the Roman Catholic Church to offer communion or to baptize persons not entitled to those things under church doctrine would be wrong, and also doubtless violative of the U.S. Constitution.
But, wait a minute. Unfortunately, the California decision casts at least some doubt on whether this will continue to be the case. Although many churches are informally segregated by race, suppose a church formally declared Black people religiously inferior to White people and formally excluded them from its activities. There would, most likely, be legal consequences to the extent that the church received any Governmental benefits, such as police assistance with traffic control before and after services, tax exemptions, etc. Now suppose that a church in California, receiving the same Governmental benefits, were to conclude that homosexual couples, although married in the eyes of the State of California, are nevertheless living in sin and therefore not eligible to become members, receive communion, or enjoy other benefits. Assume that such a church were to decline to perform marriage ceremonies for homosexual couples. Assume, in other words, that it were to shun them. Would adverse legal consequences attach to such refusals? I don't know, but a non-frivolous case could certainly be made for it.
There are, obviously, limits on the rights of religious organizations to perform legally cognizable marriages. The United States have laws which prohibit the consummation of any marriage between people under the legal minimum age; any consummated marriage involving an underage person regardless of whether sanctioned by a church would violate existing and generally reasonable laws; quite properly so. Were a child under the age of consent to be "married" by such a church, with consummation deferred until majority, it seems unlikely that any law would be broken; however, the validity of the unconsummated, underage, marriage would be highly questionable under State and Federal Law, for social security, tax, employment benefits, welfare and all other purposes. It would have no more legal validity than a marriage performed by the captain of a ship, "for the duration of the voyage." To receive the civil benefits of marriage, it is normally required that the participants have a marriage certificate from the appropriate authorities as well as other documents required under State law before the marriage takes place. In the absence of such documents, any marriage performed by a church or other organization would have no legal effect until performed again following the completion of legal requirements.
Bigamous marriages, permitted by some religions, fall into the same category. Whether a church is willing to perform bigamous marriage ceremonies should be left up to the church, not the Government. As to the civil and criminal benefits and liabilities, that is quite another question. I leave aside here the legal question of adultery, which could easily arise when a man (or woman) takes a second (legally unrecognized) spouse, because the laws against adultery are, for the most part, no longer enforced and therefore are of little if any consequence.
Marriage is also a secular undertaking, with secular consequences.
The legal consequences of marriage and civil union in California were declared by the Court to be essentially fungible; no differences were illuminated. The Court nevertheless held that this made no difference, since society looks differently upon people who cohabit and are married, and those who cohabit and are not. To the extent that society does so, this seems to be more in the realm of religion and personal preference than anything else.
Marriage has Social and Religious Consequences, Beyond the Power of Any Court to Change.
In the olden days, many religious people looked with disfavor upon people living in sin, i.e., without the benefit of marriage "in the sight of God." God evidently, in those good old days, was partially blind and did not see people married in registry offices or outside the established church. For the most part, these views have changed. Based on a completely unscientific and statistically flawed analysis of my friends and acquaintances, it does not seem to matter a bit whether people holding themselves out to be a "couple" were married, in the Sight of God or otherwise, are "shacking up" on a more or less permanent basis, or are of the same or different sex. I cannot recall any discussion with a couple of whether they were actually married, in a civil union, or shacking up. They are as they are, it is none of my business, and I don't care. Some people do care, however, and the decision of the Supreme Court of California is not likely to change their views.
According to one commentator,
In the decision, the California court sees children primarily through the eyes of same-sex couples who want to secure custody and control of children. The court makes emphatically clear that it deems this to be a right of same-sex couples that is equal to–and identical to–the right of married mothers and fathers to adopt or conceive and raise their own children.
It is there complained that the decision voids the "rights" of children to be raised by a mother and father. It is quite probable that children raised in households by a loving mother and a loving father have much to be grateful for. However, I am unaware of any such "right," and the commentator cites no basis for the assumption that one exists, desirable though it may well be. Some states permit adoption by same sex couples, and the California decision realistically offers little new on this point.
Many, if not most, laws and interpretations pose a potential for unintended and adverse consequences. The California decision does so to a much greater extent than most, and for this reason, if for no other, should be reconsidered, carefully, by the Court.