On California's Same-Sex Marriage Ruling

by Scott Williams

Okay, I have held off commenting on the recent California Supreme Court decision legalizing homosexual marriage for a number of reasons, the most important of which is the fact that I wanted to be thoroughly informed on the matter.

But after reading most of the 174-page decision, as well as countless different viewpoints on the ruling, my thoughts were in so many different places that I had no idea what direction I would head with a blog post. So the following is just a collection of thoughts on the ruling and the current state of the definition of marriage.

Marriage by spontaneous generation
When it established one of the nation's first domestic partnership statutes in 1999, the California legislature declared that it was "in lieu of marriage." In other words, domestic partnership was not marriage. Each year after that, the legislature chiseled away at the individual distinctions of domestic partnership, replacing each with a privilege previously reserved for marriage. Each time, they assured that domestic partnership was still not marriage. By 2006, there were only eight minor statutory differences between domestic partnership and legal marriage.

So when the state Supreme Court took a look at the domestic partnership law this year and compared it to the traditional definition, their reply was, "Well whaddya know, it is marriage."

A fork in the road
In the court's majority opinion, Chief Justice Ronald George from the start pointed out that there is a religious definition of marriage, and a civil definition, and nothing that the courts decide should be construed as limiting the religious definition. However, in our modern culture, the church has ceded to the state most of its authority on the matter of marriage. So it is naïve to believe that the recent 4-3 ruling by the Supreme Court won't severely impact marriage in the religious realm.

Exactly how that will happen is anyone's guess. The constitution protects most denominations from having to perform same-sex ceremonies if that violates their religious beliefs, but many predict that lawsuits will start soon against churches that receive any kind of government funding or tax incentives.

Another likely scenario is that civil and religious marriages—which have been seen as fairly similar over recent decades—will begin to diverge. The California ruling may serve as a much-needed reminder to the church that God is the designer of marriage and that we need to get serious about making our marriages follow the pattern He intended: one man, one woman, one lifetime. Many churches have begun to experiment with covenant marriage agreements, whereby a couple promises to seek church counsel in times of difficulty, and to not divorce except on biblical grounds, no matter what the state allows.

Not sex, but sexual orientation
The majority opinion in the court decision hinged on what, to me, is a major change in judicial thinking.

The California Supreme Court ruling overturned the ruling by the State Court of Appeals (which overturned the state Superior Court). The appeals court said that since the right to marry was not a matter or sexual discrimination (different standards for men and women), the "rational basis" standard and not the "strict scrutiny" standard applied. In other words, the state only has to prove why it treats citizens differently and not why it doesn't treat them the same. That's an important distinction.

The constitution of California, like that of most states, prohibits discrimination on the basis of several "suspect class" distinctions, like race and sex. As it is intended, a woman should not be forbidden to marry if that right is given to a man, nor should a Latino be denied if marriage is available to a Caucasian.

The state Supreme Court made a subtle but profound side step from previous thinking. Instead of saying that the state cannot prohibit a person from choosing to marry, it claimed that the state cannot prohibit who a person chooses to marry. Marriage, they say, is established in the bonds of love, and the state should not interfere. As the State Court of Appeals (and every other decision before) defined it, no one is prohibited from marrying (marriage being according to the traditional definition). But the California Supreme Court declared that the state was prohibiting it because it too narrowly defined marriage.

If you think about that last sentence, it is hard to make a case for long against polygamy as a viable marriage option, especially when you consider another of the court's arguments.

Marriage, second class
One of the chief arguments of the California Chief Justice was that continuing two types of marriage (traditional and domestic partnership) creates a second class citizenry among homosexuals.

Here is my paraphrase of the progression of thinking as laid out in the majority opinion.

1. Allowing homosexuals to marry those of the same sex doesn't infringe on heterosexual couples' constitutional rights to marry those of the opposite sex
2. The traditional definition of marriage hurts homosexual couples by creating a second-class marriage status of domestic partnerships
3. That status then creates second-class citizens, because of past ill treatment of homosexuals
4. And to have separate standards for homosexuals and heterosexuals establishes a state standard that perpetuates that second-class treatment

The Chief Justice admitted that his decision was based strongly on injustices he had seen in the pre-Civil Rights era South and elsewhere in America. While his reasoning was certainly heart-felt, it is misguided when taken to its logical conclusion.

Current California law specifically forbids polygamous marriage. But couldn't polygamists use the same arguments from this recent decision?

They could state:

1. "Marrying more than one person would not hurt heterosexuals or homosexuals, and as long as it wasn't marriage to children, it wouldn't hurt anyone."
2. "Limiting marriage to two persons hurts polyamorous individuals by forcing them to settle for illegitimate marriages not recognized by the state."
3. "This creates second class citizens, especially considering past ill treatment of polygamists."
4. "State law perpetuates this second-class status."

The bottom line
In 2000, the citizens of California overwhelmingly voted to define marriage as being between one man and one woman. Interestingly, a poll released today finds that a narrow majority of Californians support the idea of same-sex marriage. Despite what states and courts choose to permit - or even to actively support -- marriage will always and forever mean one thing: The lifelong union between one man and one woman growing in oneness. That is a creation of God alone, and marriage can be nothing else.

Redefine it. Call it what you will. But it's not marriage.