by Last year Doug Kmiec and I authored an opinion in the San Francisco Chronicle about a possible solution to the same-sex marriage debate in California. We proposed that all marriages be considered civil unions (or some other name) so that the state is removed from defining marriage, leaving the decision of whether to recognize a marriage to religious traditions. Although the idea of “civil unions for all” is not new, we found this solution to be particularly useful under the circumstances confronted by the California Supreme Court when the validity of Proposition 8 was challenged.
In the In re Marriage Cases decision, the California Supreme Court held that the legislative language enacted by the voters in Proposition 22, which limited the designation of marriage to a union “between a man and a woman,” was unconstitutional and needed to be stricken from the California Family Code. The language violated the state equal protection clause because in California sexual orientation is a suspect classification and by reserving the designation of marriage for opposite-sex couples only, the state discriminates based on this classification and impinges on the fundamental interests of same-sex couples without a compelling state interest.
Proposition 8 was an initiative to amend the California Constitution to limit the designation of marriage to a union “between a man and a woman” in the same way Proposition 22 amended legislative language. California voters supported the amendment in November 2008 by a 52% majority and the Proposition survived challenge when the California Supreme Court in Strauss v. Horton upheld the validity of the amendment, but refused to enact it retroactively to bar same-sex marriages previously entered into before the ban.
The problem that Doug and I continue to see in California is that the court’s reasoning in the In re Marriage decision was not challenged by either Proposition 8 itself, or by its proponents in Strauss v. Horton as to the finding that legislative language limiting marriages to a union “between a man and a woman” is unconstitutional. The California Constitution now reads “Only marriage between a man and a woman is valid or recognized in California.” Therefore, Doug and I maintain that by using the word “marriage” in the California Family Code legislation, the state is violating the constitutional rights of same-sex couples just as surely as it violated these rights by expressly defining the term marriage in the legislation itself.
Our San Francisco Chronicle piece and subsequent expressions of our opinion in a Time magazine article and recently in the Salt Lake City Tribune, explain that California had an opportunity to resolve this controversy in a way that removes the state from the business of marriage and preserves religious freedom. By striking the word “marriage” from legislative language and requiring the legislature to use a word other than “marriage,” the California Supreme Court could have avoided a continuing struggle to involve the state in defining marriage. Perhaps the federal courts will determine that this is an approach that could work based on California law and the circumstances surrounding Proposition 8.
Eventually, the voter base will likely change to support same-sex marriage and many religious groups may find the state definition of marriage to be antithetical to their religious beliefs. Civil unions for all will achieve equality, keep the state out of the marriage business, and allow religious adherents to define marriage, regardless of whether or not they have the majority of voters behind them.
Is your suggestion that the people can never overrule a court decision, because in adopting an amendment the people do not issue an opinion overruling the court? Why isn’t it enough to dictate a result contrary to that established by the court’s prior decision? And why isn’t the California equal protection provision subject to Prop 8, which was adopted later?
Like Thomas, I don’t understand the claim that state law limiting marriage to opposite-sex couples violates the state constitution when the state constitution has explicitly been amended to define marriage in that way.
I also doubt that conflicts between religious freedom and nondiscrimination provisions can be avoided just by tinkering with a word. Imagine, say, a religiously-affiliated college that has a code of conduct forbidding sex outside of “marriage,” and that accordingly would decline to hire a same-sex couple (just as it would decline to hire a same-sex couple living together without marriage). Absent some kind of legal exception or accommodation, this college’s religiously-based hiring policy would likely be understood to conflict with a nondiscrimination norm or law covering sexual orientation. To be sure, the college won’t hire either couple living outside marriage, but the opposite-sex couple can marry if they choose to, while the same-sex couple can’t. So the impact at least seems to be different. Now suppose the state law is changed, so that “marriages” are replaced by “civil unions.” How would this change do anything to alleviate the previous conflict between the college’s freedom to follow its religious beliefs and the nondiscrimination norm or policy? It’s not a rhetorical question; since this “get the state out of the marriage business” seems to be increasingly popular, I’d really like to know how this proposal does anything to reduce the conflict with religious freedom. What am I missing?
“The California Constitution now reads “Only marriage between a man and a woman is valid or recognized in California.” Therefore, Doug and I maintain that by using the word “marriage” in the California Family Code legislation, the state is violating the constitutional rights of same-sex couples just as surely as it violated these rights by expressly defining the term marriage in the legislation itself.”
This seems an odd sort of argument. You and Doug argue that, by using the same word as the Constitution of California in its laws, namely “marriage,” the legislature is somehow violating the Constitution.
On one hand, if one is a positivist, one might argue that rights flow only from laws, and since the CA constitution is “the” law in CA, there could not be any law which agrees with the constitution that is itself unconstitutional.
On the other hand, if one is some sort of natural jurist, one could posit some sort of normative idea beyond positive law, even if it flows from the law itself. It seems like you and Doug are in this position, arguing (in a Dworkin-like manner) that there is some sort of extra-constitutional “constitution” composed of ideas of human dignity and liberal equality which is offended by the modification to the actual California constitution.
It almost seems like you want to take the approach of John Rawls, namely that if heterosexuals were placed behind a veil, and none knew “his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like,” it would be moral only for them to choose marriage for all (what you and Doug term civil unions) for all on some equal basis.
This seems like the approach you take, but the “you religious people better accept civil unions because if you do not, you won’t like what happens next” rings somewhat hollow. It seems to presume that what happens next WILL be worse (instead of constitutional amendments in favor of traditional marriage). Even if the alternative is “worse”, your civil unions argument also assumes that acceptance of civil unions somehow halts such a process in its tracks, and that religions will then be left alone, and we will all proceed in our tolerant manner. Also, it must be considered that marriage is not simply about two (or more in the extension of your argument) people choosing to make some sort of partnership. There are children involved, often. Like Steven, I have my doubts – I suspect the tolerance would last only so long as it took for someone to sue a Catholic Church over refusing to accept the child of a three-way civil union.
I am reluctant to abandon the legal fortress of marriage at the behest of well-meaning friends when my only fallback is a sandcastle at high-tide.
One thing that occurred to me when I spoke to Doug about this topic one day was the difference I experienced in investigating this issue now that I was Orthodox Christian. When I was a member of the churches of Christ, there was no effective authority figure. If I would have lived in a small town dominated by membership in my congregation, it’s possible that the elders and deacons would have enough social pressure to be properly called authority figures, but in most situations in America today, you can effectively walk down the street to a different congregation.
However, now as an Orthodox Christian, I cannot do that. If I were to press against the Bishop I would lose (in all but the most bizarrely hypothetical scenarios). There is now an effective religious authority in my life. No one would keep me from communion or Church attendance in the churches of Christ. But in Orthodoxy there is Eucharistic discipline.
I say all this to setup the notion that marriage within Orthodoxy is a very well-defined thing. 2000 years of explicit definitions, not just cultural norms. Sure, some things have fallen out of use like not allowing your child to marry someone who’s related to your Godparent as this is a sort of spiritual “incest” but most of these canonical and extra-canonical definitions stand.
There are many limitations about marriage in the Orthodox Church that are not enshrined in American law and never will be. Proper Orthodox marriage cannot be equated to American law. In fact they have little to do with one another. Orthodox Christians do not even take vows at their marriage crowning. In other words, in Orthodoxy the participants in marriage do not define their own contract. In lower-church organizations like the churches of Christ, marriage ends up defined by the legal apparatus from the larger culture because it lacks that dogma.
In other words, so called non-Sacramental groups have a bigger stake at the normative legal definitions of marriage. For someone like Doug or myself, marriage is what our Bishop says it is, without regard for what’s on the books in Washington or Sacramento.
This is a dramatic oversimplification, but it’s important to understand I think, why so many protestants in particular fight the culture war. Because they rest much of their own norms on the surrounding cultural norms.
I think for myself, this fight has become a distraction from elevating marriage within my own religious community. Finding some sort of effective stalemate that preserves the religious liberty of the Orthodox Church is the only real reason to even participate in the fight. So Doug and Shelley’s position appeals to me.