What in God’s name is wrong with same sex marriage?

What in God’s name is wrong with same sex marriage? I truly cannot comprehend it, and the failure to recognize it in most of the country has led to genuine pain and hardship to families who should not have to experience that discrimination in the U.S.A.

The case for allowing same sex marriage was made quite well by the Supreme Court of  California last year, in the decision California citizens felt so threatened by they just had to pass Proposition 8. I quote below from it at some length. Page numbers reference the pages in the pdf copy of the opinion:

At 7: [T]he substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own – and, if the couple chooses, to raise children within that family – constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

At 11: [T]the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes – the interest in retaining the traditional and well-established definition of marriage - cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

At 11-12:  First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in  Some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

47, n. 27: If a comprehensive domestic partnership law had not been enacted in California, and if plaintiffs had brought a constitutional challenge to the California marriage statutes and our court had concluded that those statutes were unconstitutional because they did not afford same-sex couples rights and benefits equal to those available to opposite-sex couples under the marriage statutes, we might well have further concluded – as other state courts have determined in similar situations – that the appropriate disposition would be to direct the Legislature to provide equal treatment to same-sex couples, leaving to the Legislature, in the first instance, the decision whether to provide such treatment by a revision of the marriage statutes or by the enactment of a comprehensive domestic partnership or civil union law. (See Baker v. State, supra, 744 A.2d 864, 886-889; Lewis v. Harris, supra, 908 A.2d 196, 221-223.)

Because the California Legislature already has enacted a comprehensive domestic partnership law which broadly grants to same-sex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of the burden of successfully prosecuting a constitutional challenge to obtain those substantive rights and benefits. Thus, in this proceeding, we are faced only with the narrower question that logically ensues: whether, in light of the enactment of California’s domestic partnership legislation, the current California statutory scheme is constitutional.

57: As these and many other California decisions make clear, the right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual. (footnote omitted)

 At 66: 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. (footnote omitted).

At 69-70: In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one’s choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution – in declaring that ”[a]ll people . . . have [the] inalienable right[] [of] privacy” (art. I, § 1) and that no person may be deprived of “liberty” without due process of law (art. I, § 7) – do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights.

At 79: Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage. (footnote omitted)

 At 103: [W]we conclude that in the present context, affording same-sex couples access oly to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.

At 105: [W]e conclude that the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.

At 106: In the present case, the question before us is whether the state has a constitutionally compelling interest in reserving the designation of marriage only for opposite-sex couples and excluding same-sex couples from access to that designation, and whether this statutory restriction is necessary to serve a compelling state interest. In their briefing before this court, various defendants have advanced different contentions in support of the current statutes, and we discuss each of these arguments.

109: We disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-ofpowers doctrine precludes a court from determining that constitutional question.

On the contrary, under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve” (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53), a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.

At 111: By the same token, the circumstance that the limitation of marriage to a union between a man and a woman embodied in section 308.5 was enacted as an initiative measure by a vote of the electorate similarly neither exempts the statutory provision from constitutional scrutiny nor justifies a more deferential standard of review.

At 113: Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute – having been adopted through the initiative process – represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints thatthe people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

At 116-119: After carefully evaluating the pertinent considerations in the present case, we conclude that the state interest in limiting the designation of marriage exclusively to opposite-sex couples, and in excluding same-sex couples from access to that designation, cannot properly be considered a compelling state interest for equal protection purposes. To begin with, the limitation clearly is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples. Extending access to the designation of marriage to same sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children. As Chief Judge Kaye of the New York Court of Appeals succinctly observed in her dissenting opinion in Hernandez v. Robles, supra, 855 N.E.2d 1, 30 (dis. opn. of Kaye, C.J.): “There are enough marriage licenses to go around for everyone.” Further, permitting same-sex couples access to the designation of marriage will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes upon opposite-sex couples who marry. Finally, 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 officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.) (f00tnote omitted)

While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional. sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples – while providing only a novel, alternative institution for same-sex couples – likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.