Wednesday, June 18, 2008

Note #1 on California's Supreme Court's Decision

Here is where the majority opinion takes up its argument:

“First, we must determine the nature and scope of the “right to marry” — a right that past cases establish as one of the fundamental constitutional rights embodied in the California Constitution…” (page 5, 2nd paragraph)..

The ‘right to marry’ is a phrase that does not exist in any way, shape or form in the California Constitution. It is a right that other judges have read into the constitution. This is what the court's opinion is saying when it says, "a right that past cases establish..."

The phrase “fundamental right to marriage” does not sound terribly suspect, even removed from its specific historic context. The historic context of course is that Jefferson put words in the United States Constitution that he knew the current Americans were not living up to. Patriotically, and with great dignity, California put these same words, with some cool addendums, into its constitution. Years later, a wise judge pointed out the trick Jefferson had played on his fellow Americans and, with as much force as the court could muster, ordered his fellow Americans to live up to their own words. Californians could not make interracial marriage illegal without a significant degree of hypocrisy.

Certainly, there are fundamental rights such as the right to bear arms and the right to free speech that come with limitations relative to age and background. The idea of a right to marry certainly seems consistent with the right to the pursuit of happiness that is the staple of the American Constitution. Likewise, California’s declaration of rights, like the United States Constitution, suggests that it may not have enumerated all of the inalienable rights, and it also includes the right to pursue happiness: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Still, wresting anything from its context is suspect. One has the fundamental right to marry if one is not already married, if the spouse is not coerced in some manner, if one is not a minor and so on. Nonetheless, who can argue that governments should not refuse to allow consenting adults marry?

The problem is not that same sex couples cannot marry; they can marry any member of the opposite sex they choose. That’s not the issue. Ironically, as becomes evidenced by the later, finer print of this document, the court must “expand” (according to the court) the “definition” of marriage to produce a. an offense and b. a union that same sex couples can enter into. With amazing, unwitting irony, the court has chosen to site the exact decision that makes its own ruling unconstitutional, for the court does not expand the definition of marriage at all. Instead, it radically limits marriage by proclaiming all marriages civil unions. There are no more husbands. There are no more wives. There will be no more fatherhood, and motherhood is banished. By defining marriage as something marriage isn’t, this court has denied the very “right to marry” that was declared to exist in the California by a former court.

No comments: