The California Supreme Court Case in re Marriage Cases
By Donald McConnell,
Dean of Trinity Law School

In 1999, the California Legislature enacted domestic partnership legislation.  In 2000 and nearly every year thereafter, the benefits associated with domestic partnership were expanded by the State Legislature.  By 2006, the state had given domestic partners nearly all of the benefits of marriage, including married filing status on state income taxes.  There were still some differences relating to the parameters of defining domestic partnership, i.e. that it can’t be secret, that the parties must live together, etc. 

In the year 2000, a backlash to the growth of gay rights in California occurred with Prop. 22, a proposition that made it a state law that marriage in California should be between one man and one woman.  The law, however, did not affect domestic partnerships.  In 2004, the Supreme Court of California rejected an attempt by local officials to issue marriage licenses to same sex couples.  That decision was based largely on the local authorities’ lack of constitutional authority to force such a change on the state.  The court, however, did not foreclose the possibility of future litigation.  In the case In Re Marriage Cases, the question of the constitutionality of limiting marriage to opposite sex couples came before the California Supreme Court.  On May 15 of this year, the California Supreme Court found that it was unconstitutional under the California State Constitution to limit marriage to opposite sex couples.  The court concluded that denying same sex couples the label of “marriage” treated them as second-class citizens and violated equal protection under the California State Constitution

The court started off its reasoning by discussing several technical arguments such as the argument that the case was moot, that it was barred by Prop. 22, or that current marriage law already allowed domestic same sex marriage.  After rejecting these, the court also went through a long summary of the development of laws related to marriage in California . 

The court noted a general right to marry based on case law interpreting the California Constitution and the Federal Constitution.  The court quoted Ortiz v L.A. Police Relief Association (2002) 98 Cal. App. 4^th 1288 at 1303: 

“We have recognized that the concept of personal liberties and fundamental human rights entitled to protection against overbroad intrusion or regulation by government extends to such basic civil liberties and rights not explicitly listed in the Constitution as the right to marry, establish a home, and bring up children.” 

The court also referred to the right to marry as discussed in the federal courts in Meyer v Nebraska and Griswold v Connecticut .  In this way, it associated a right to marry with fundamental rights and with privacy.  But while the court cited federal cases based in natural law and natural right, it sought to avoid the traditionalist moral claims associated with that line of reasoning by focusing on the evolving nature of legal norms.  The court noted, “Constitutional concepts are not static…we have never been confined to historic notions of equality.”  It noted that in California , the right to marry “is not based on anachronistic notions of morality”…but is “rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities in an organized society.”  The court, however, did make “moral” judgments of its own, and took a swipe at people who believe that homosexual acts are immoral by implying that the past was essentially wrong when it “once denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity.”  The court truthfully noted that by contrast, “this state’s current policies and conduct regarding homosexuality recognizes that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all individuals and are protected from discrimination on the basis of their sexual orientation.” 

The court characterized the question before it as not a question of whether or not there is a right for homosexuals to marry each other, but rather whether or not the right to marry could justly be denied to anyone based on sexual orientation.  The court was aware of the argument that marriage law in California passes the equal protection test by allowing all persons to marry persons of the opposite sex regardless of sexual orientation.  But they dismissed this as essentially requiring people with a homosexual orientation to change their orientation or live unsatisfied lives: 

“In light of the fundamental nature of the substantive rights embodied in the right to marry—and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society—the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.” 

The court finds that marriage is actually a cluster of rights that includes “the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized family.”  The court tries to bolster its expansion of the notion of who’s entitled to marry by referring to other civil rights cases such as those involving miscegenation and the case involving reproductive freedom for a disabled woman.  The court tries to say that rights should be interpreted broadly and has given a sweeping definition and scope, rather than limiting it through a narrow definition.  The court attempts to distinguish the cases cited by the California Court of Appeal in which the Supreme Court had used a narrow definition of rights in order to avoid their expansion, such as its narrowing of the definition of autonomy in order to avoid a right for assisted suicide. 

The court proceeds to an equal protection analysis in which it finds that sexual orientation is a suspect class.  The court claims that sexual orientation is the equivalent of an immutable trait because “whether or not sexual orientation is based on biological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.”  The court concludes with little or no discussion of data that it is prima facia the case that homosexual people make a contribution to society and that that categorization does not in any way eliminate that contribution or mitigate it.  They also discuss the history of stigma associated with homosexuality.  Given those three criteria, they find that sexual orientation is, in fact, a suspect class and that strict scrutiny is the appropriate standard.  The court finds no compelling interest for excluding people with a homosexual orientation from marriage to one another.  The court claims that there is no harm to children either from gay parents or from the existence of homosexual unions, asserts that there is no harm done to opposite sex couples by expanding the scope of who may marry whom, says that the new definition of marriage will avoid the disparagement of people with a gay sexual orientation, and maintains that the law must not treat these people as second-class citizens.  The court has an extensive discussion of the statutes that limit marriage to couples of the opposite sex, and concludes that these statutes are in effect unconstitutional.  But the court recognizes that it should not destroy marriage itself, and so essentially allows that marriage will have to be understood to include same sex couples. 

The practical impact of this case is, of course, that same sex couples can now officially marry in California .  Now all of the rights pertaining to marriage will apply to them, including, for example, California Family Code sections 7540 and 297.5 that provide that a child born to one member of a couple is presumed to be the child of the other member of the couple as well.  This, and the law related to annulment, will fit uncomfortably with same sex couples, but the California Supreme Court has not felt challenged by these anomalies. 

The court has also already applied the Unruh Civil Rights Act to require that businesses not discriminate against people based on sexual orientation.  This will undoubtedly also be expanded to include non-discrimination on the basis of same sex marriage.  The court tried very hard to claim that its ruling would not interfere with religious freedom.  The Court cited a provision of the California Constitution that says, “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.  This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace and safety of the state.”  The court said:

“Affording same sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same sex couples, and no religious officient will be required to solemnize a marriage in contradiction of his or her beliefs.” 

Of course, this statement is dicta.  It remains to be seen whether or not future courts will accord churches the religious freedom, or whether they will conclude that the exercise of that religious freedom in deciding against the morality of same sex unions is “inconsistent with the peace and safety of the state.” 

The same dilemma will face policy makers with respect to private schools.  It remains to be seen if private schools will be allowed to maintain statements of faith or other documents that have either the intent or effect of discriminating against homosexual couples or individuals.  The effect on public schools, however, is quite certain.  Public schools will almost certainly be required to teach that same sex marriage is entitled to the same respect and dignity accorded the unions traditionally designated as marriages.  In effect, it is now public policy in California that homosexual sex is just as normative and normal as any other kind.  It will need to be discussed in a positive light in sex education classes.  It will need to be depicted in a positive light in books K through college graduation.  Students who are critical of same sex relations will need to be disciplined just as if they expressed racial animus or other irrational or bigoted ideas.  It remains to be seen how the parents in the state will accept this.  But it would appear that so far the court has made this shift in conjunction with the legislature without any real opposition except for Proposition 22 and Proposition 8.

Yet to come from the effects of this ruling are a variety of other demands, issues, and conundrums.  It is likely that this issue will be used as a wedge to get rid of civil marriage as we know it and only have contractual relationships and a separate non-legal, non-state recognized religious marriage.  That would be a precursor to encouraging an uncommitted “free love” society with no civil benefits for marriage and no special rights for parents of families or special family control over children.  Such a situation would encourage lack of marital commitment on the part of nearly everyone except sincere religious believers or people who recognize their self interest in having some sort of a marital union.  It would also facilitate the shift of parental responsibility from families to the state. 

Calls to get rid of exemption for faith-based organizations and churches in hiring may only be the beginning of the difficulties that faith-based organizations face.  Will the California Legislature ultimately claim that the Bible is hate speech because of its opposition to homosexual sex or same sex unions? 

Demands for the right to clone human beings and utilize other genetic manipulations are likely to increase with the desire of same sex couples to have children with the genes of one or both “parents.”  Polygamy and polyamory are also on the horizon.  While the court in a footnote denied that polygamy was consistent with “mutual supportive and healthy family relationships,” that can easily be contested through pseudo-scientific studies like those supportive of same sex parenting, and can easily be subjected to the same gradual change through social pressure and avant garde legislation.  There is no principled way under the court’s reasoning in In re Marriage cases to prevent polygamy or polyamory.  Practitioners of polygamy and polyamory can likewise claim that their propensity to this is in some way immutable and linked to their fundamental personality.  They can also claim that there is nothing wrong with their sort of unions and that they will benefit society.  Certainly they can claim that they, too, have been subjected to social opposition and stigma.  In other words, they can easily obtain the same strict scrutiny that the court used In re Marriage Cases and, given a few years of social pressure and Hollywood TV and movie-making to approve them, they can easily obtain the same imprimatur of a court eager to please a left-leaning contingent in society. 

Of course the results from this court decision are going to be devastating.  There will be widespread adjustment problems for the children of same sex marriages.  Think what will happen when they are confronted with moral and biblical truth as they grow up.  In the 1970s and 80s, there were literally hundreds of books written by people who identified the cause of their dysfunctional families as the stoicism of their fathers and grandfathers.  Just wait until we have to deal with the hundreds of male children raised by two women who hate men and the female children raised by two men who hate women.  In addition, it is likely that the levels of child abuse and subsequent acting out are likely to increase as we see more non-genetic parents who recognize no inherent moral limits on what they consider legitimate activity.  While not all homosexuals are pedophiles, and not all pedophiles are homosexuals, there is a high correlation rate between pedophilia and male homosexuality.  As a result, we are likely to see increases in child abuse for that reason alone.  In addition, other moral ideas will erode because there is less fear of God and man in a society that is willing to sanction same sex unions.  Instead, we have only desire and an arrogant demand for human autonomy.  Most people fear God or man enough to be “civilly righteous.”  In other words, they don’t openly kill people, or openly steal things, or do other obvious and open crimes.  One aspect of civic righteousness was that people avoided public sexual immorality.  Now the Supreme Court of California says the public must endorse certain kinds of sexual immorality.  We now “not only do such things, but approve of those who do them.”  Romans chapter one clearly speaks of the acceleration of moral decay based upon such gradual rejection of God and His order. 

Of course one other problem that is likely to accelerate is that we will face unprecedented legal shell games with the most fundamental and sweeping aspects of our culture even at the hands of supposedly conservative justices like Justice Ronald George.  This is due in no small part to the way lawyers and judges are trained in secular law schools.  Unless the fundamental nature of legal education is altered so that lawyers and future judges and future legislators are once again taught and made to understand the implied limits of law, the nature of the rule of law, and the relationship between law and objective morality, we will see more and more of the same, even if there is a temporary reprieve through the passage of Proposition 8 or other constitutional legislation. 

There are several lessons we can learn from all of this.  Allowing social evil in the present leads to more social evil later.  Slavery and racial discrimination in the United States were very wrong.  They were heretical and should never have been allowed by Christian people in a society dominated by Christians.  Allowing them for so long and dragging feet in correcting them created the judicial power and template for the In Re Marriage Cases decision.  If we had not allowed slavery and discrimination, this never would have happened because the courts would have been limited to dealing with individual disputes instead of becoming broad social policymakers in these areas.  In other words, the court accrued power dealing with a legitimate moral evil, but now has used that power in order to create a moral evil.  Had the first moral evil not been tolerated politically, it never would have been necessary for the court to accrue that power. 

This also goes to show that incrementalism does work if pursued consistently over time.  You have to hand it to the homosexual lobby that they have survived tremendous moral and social pressure and worked through an incremental agenda that has achieved incredible results for them in a remarkably short period of time.  This also shows that giving some groups a compromise of legal ground does not necessarily end an issue, but gives them a foothold for their next claim.  The nature of legal change is also evident here.  Changes in the law often seem sudden, but usually the reality is that small incremental changes in the law build up and create a tension that is suddenly resolved in a change that appears rapid—but was really foreshadowed and pre-arranged by all the small changes that went before.  So no small change in the law is necessarily really small if it is part of a trend.  In re Marriage Cases is also part of a trend in the public square to exclude or reject arguments based on morality or the Bible.  Yet the abolitionists and Martin Luther King could cite the Bible and did so successfully.  But in our culture and society, speaking straight from the Bible is no longer a socially viable strategy.  Increasingly there is even hostile pressure from those who sense a religious belief behind a secular argument.  To you, my fellow users of the internet, this should be more than apparent.  The attack comments by radical secularists are quite common on religious blogs.  This has led many bloggers to go to a moderated format. 

What do I actually think about In re Marriage Cases?  Well, I think you can tell from what I’ve already said about the implications.  I think it is a perfectly dreadful opinion that uses legal sleight of hand and makes an argument that is quite inappropriate.  What the court is really doing is changing the understanding of marriage.  Marriage has always been understood as a union between a man and one or more women in all societies.  There are no sustained and numerous instances of men marrying men or women marrying women.  There aren’t even common instances of many men with one woman.  Christianity and an enlightened understanding of the interest of women has illuminated what Jesus Himself said that originally God created Adam and Eve—one man and one woman—and the two of them joined together and became one flesh.  What God has joined together, human beings really shouldn’t tear apart.  Of course the problem with marriage as with all institutions is that human sinfulness creates additional problems that often mean that a marital union cannot survive.  Yet it is still the case in nearly all civilizations that marriage is between one man and one woman, or at the very outside, one man and a handful of women.  Same sex unions really are an exceptionally radical idea.  But then ideas are not inherently bad because they are radical.  They are bad if they are immoral.  And indeed, same sex marriage is immoral.  The Bible teaches in many places, including the first chapter of the book of Romans, that homosexual acts and desires are not in accord with God’s optimal design for the way human beings are meant to live.  They are damaging to society as well as to the individuals who engage in them.  This is not to say that they are the very worst of all sins.  Certainly there are many sins and there are probably sins worse than same sex unions (certainly genocide, for example).  But no sin is excused because other people commit other sins. 

Here the court has transgressed a major boundary.  It has sought to create a civil right to do something that is inherently wrong.  As I have said on this blog before, real objective rights that come from God cannot be rights specifically to do something wrong.  They may be rights that make it easier for you to get away with doing something wrong, but there cannot be a right to do wrong in itself.  Humanly created rights should similarly not transgress this boundary and specifically enable evil.  Yet that is exactly what the court has done here.  It is requiring a civil imprimatur for evil.

The court essentially did this by saying that there is a right to marriage itself and that that right applies to all people regardless of who they are inclined to marry.  Now the court could have stopped there if it was willing to say that the right to marry is the right to do what marriage has always meant, marrying someone of the opposite sex who is above the age of consent, and not a close of a blood relation.  Instead, they have decided that marriage includes the ability to marry whoever you want, even if they are of the same sex.  This is a fundamental radical change, and yet the court does very little to justify it apart from saying that attitudes against homosexuality are outmoded, outdated, and contradicted by the legislative trend of the state of California.  The court also tries to say that marriage law is really in the realm of positive law.  But the court uses many citations from Meyer v Nebraska and other cases that are speaking about natural law, natural rights, and the right reason of the common law as sources for fundamental rights.  It is those kinds of arguments that made marriage a fundamental right to begin with, not any kind of positive law finding or indication.  The court is cheating not merely by saying that they are merely expanding a recognized right to marriage, but in their claim that they have positive law power vis á vis the right to marry. 

Based on this, what can we do?  We need to react in love and prudence, and NOT in hate and fear.  Certainly the most important thing we can do is to pray.  We need to pray for more people to come to Christ, and for revival among those who already believe.  We need to pray for good sound doctrine to be taught, believed, learned, and lived.  We need to pray for wisdom and for better leaders and judges than we deserve.  We need to pray for repentance and for at least a temporary reformation of society.  Practically, we can support Proposition 8.  We can also make sure that our churches have appropriate expressions of policy on same sex marriage that make clear our religious beliefs and why we believe them so that they can be protected as religious beliefs.  We also need to get more good people involved in the political process and train more good people as lawyers.  We need to stand against societal evil and injustice regardless of what it is so that we can prevent this kind of situation in the future.  We need to educate and train our children in the faith and in sound doctrine and reasoning, and we need to support good Christian education, especially legal education.