Monday, June 16, 2008

Here Come the Brides: Only 48 More States To Go

Despite the Radical's lack of conviction that marriage will deliver the goods when it comes to equal rights (or eternal happiness for that matter), no ideology prevents me from acknowledging that today is an historic day in California. Gay marriage is legal, thanks to the dedicated efforts of a vast number of people who have organized stubbornly for decades, and to the California Supreme Court. To quote from the decision, which goes into effect at 5:00 today little late for the eastern news cycle, but smack on for the Central and Pacific time zones):

In defending the constitutionality of the current statutory scheme, the Attorney General of California maintains that even if the constitutional right to marry under the California Constitution applies to same-sex couples as well as to opposite-sex couples, this right should not be understood as requiring the Legislature to designate a couple’s official family relationship by the term “marriage,” as opposed to some other nomenclature. The Attorney General, observing that fundamental constitutional rights generally are defined by substance rather than by form, reasonsthat so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple’s constitutional right to marry simply by assigning their official relationship a name other than marriage. Because the Attorney General maintains that California’s current domestic partnership legislation affords same-sex couples all of the core substantive rights that plausibly may be guaranteed to an individual or couple as elements of the fundamental state constitutional right to marry, the Attorney General concludes that the current California statutory scheme relating to marriage and domestic partnership does not violate the fundamental constitutional right to marry embodied in the California Constitution.

We need not decide in this case whether the name “marriage” is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples. Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

As I understand it, Del Martin and Phyllis Lyon will lead things off, as they did in February, 2004. Next up: a decision from the Connecticut Supreme Court, probably this summer. And now that all those progressive California organizers have time on their hands, can we start on universal health care?

Note: Picture at left was downloaded after the most famous lesbians in the United States put on the old ball and chain today -- again! Mayor Gavin Newsome is in attendance. Do you think it will last?

1 comment:

ortho said...

Hi TR. I saw a photo of Del and Phyllis in today's paper. They both looked beautiful. So did the many other happy couples I saw.

I hope the people of CA reject the proposed constitutional amendment ("Only marriage between a man and a woman is valid or recognized in California.") this November.