SAME SEX MARRIAGE: THE CALIFORNIA QUESTION
It looks like there are some basic principles to put in order, after all [see earlier essay in which the argument was put forth that previous Supreme Courts had already dealt with the ordering of all basic principles.] This is a tough case, no doubt about it. If I were a Supreme Court Justice . . .
I think I’m going to have to recuse myself, or abstain from making a decision if that’s allowed. If I had to vote, would I uphold the right of the voters of California to put a proposition on the ballot defining marriage as between a man and a woman, or would I find it unconstitutional and uphold the view that marriage is a fundamental right that must include same sex couples? Nine states and the District of Columbia have approved the latter view so far, but that means 41 states have not. And whether Prop 8 is upheld or set aside, what would that mean for all the other undecided states?
How does one balance the historic right of states to pass laws concerning marriage with the change in public attitudes that is slowly moving toward acceptance of gay marriage, at least according to recent polls? Should the Supreme Court make a broad ruling or should their decision be narrow and tailored to the California question? It appears that “both sides are right” [each from its own viewpoint] and “both sides are wrong” [according to the opposing camp], so where is the path to follow?
In reviewing the legal history of the fundamental right to marry, will the Court find language that can and should be interpreted as applying to same sex couples? If they do not see such precedent, are they willing to extend such language now?
On the one hand, given the historic deep-seated legal, religious, and cultural opposition to homosexuality, it’s hard to imagine a way in which the Court could conclude that the right of same-sex couples to marry has already been established and is a historically validated “fundamental right”. On the other hand, working from the premise of equality and equal treatment under the law, the Court could describe this previous legal history (with its omission of protection for same sex marriage couples) as constituting discriminatory practice by today’s standards; the Court can, in effect, decide that such previous anti-gay laws (and socially ostracizing treatment) were and are a violation of an individual’s guarantee of equality. The Justices might, but will they?
The Court can limit itself to the California Constitution, where equality is promised but where the right of the people to put propositions on the ballot is also guaranteed. Instead of the state’s constitution, the Court could use the U.S. Constitution to make their ruling one way or the other: yes, the right of gays to marry can be upheld; no, the right of gays to marry cannot be affirmed because insufficient language exists to justify to doing so; or, finally, the Court can seek a middle ground in which neither side gets a complete victory but both sides gain a partial vindication. The question then becomes who got the bigger piece of the victory pie?
Had I not recused myself, I would have advocated the case be decided in a narrow manner, based on the California Constitution first, and addressing specifically the issue of “equality” AND “the right of the people to amend the state constitution through propositions placed on the ballot.” If that issue can be resolved, perhaps the path will appear as to how to resolve the larger questions for the nation as a whole. The injury to the anti-gay camp is not to be found in a sexual, moral, or religious context but rather in the fact that, as citizens, their 52% majority vote should not be set aside lightly.
Justice Rosenberg: how do you vote?
Regarding Prop 8: Justice Rosenberg votes to affirm it as a constitutional expression of the will of the voters of the state of California and finds insufficient grounds for validating the argument that same sex couples have a fundamental right to marry.
-RR San Jose, March 25, 2013
Note: this is not to say this is my personal opinion, but rather my views on what current law mandates as the most appropriate legal conclusion.
AFTERWORD July 3, 2013
At the end of June 2013 the Supreme Court held by a vote of 5-4 that proponents arguing on behalf of California’s Proposition 8 lacked legal standing before the Court, as they failed to demonstrate in what way they were specifically injured by Prop 8. Thus, in not taking on the case, they allowed the previous Ninth Circuit Court’s ruling to stand which held Prop 8 unconstitutional (for denying equal rights and equality of treatment under the state constitution).
The Supreme Court also overturned DOMA (Defense of Marriage Act); the Court held that the federal government could not deny married persons full benefits when they were legally married according to state law (about a dozen states or so have legalized same-sex marriage plus the District of Columbia). This vote was also 5-4.
In addition, it appears same-sex couples now have the same rights as others when it comes to immigration and applying to bring a spouse from abroad here to the U.S. It will take time to determine the full range of newly acquired rights and at what point these new rights may run up against legal problems on a local, regional, or state level.
The Ninth Circuit Court of California, which had issued a stay on same-sex marriage ceremonies pending Supreme Court action, immediately lifted its stay which allowed same-sex couples to begin marrying the same day!
My original opinion (given above, p. 1-2) proved irrelevant since proponents of Prop 8 had no legal standing before the Supreme Court. I still wonder if they could have argued that there was injury to them as voting citizens and–as part of a majority–their vote was being “injured”? Perhaps it would have made no difference. In any event, not all legal and procedural issues have been resolved as thirty-one states have passed laws defining marriage as being between a man and a woman, so questions remain as to what will happen with same-sex couples who marry legally in one state and then move to a different state that does not allow same-sex marriages, and so forth and so on.
It seems obvious that more court cases will occur in the future and the Supreme Court one day will need to address the fundamental issue based on the essential question of whether homosexuals have a constitutional right to marry. In the meantime, the gay community might consider starting a campaign for a new constitutional amendment to legalize that very right—it would be a long campaign, to be sure, but so was the women’s campaign to get the right to vote. The first women’s rights conventions began in 1848 and they did not see the 19th amendment ratified until 1920, or approximately 70 years of struggle!
Meanwhile, another “minority community” has fought its way up from deep beneath the sea of second-class citizenship toward the light of a new and brighter day!
Addendum offered by Dr. Roger E. Rosenberg on July 3, 2013 @ home in San Jose, CA.
