Court Stumbles Badly … Into Good Social Policy

Rabbi Kula,

Austin writes:
What, precisely, was 'thin' about the legal reasoning? And yes, actually, the Supreme Court of the State of California is the last authority on interpretation of the California State Constitution. So asserting marriage is a constitutional right does in fact make it so. They also asserted this right in 1948, with Perez v. Sharp, becoming the first court in the country to declare that interracial marriage was a fundamental right.

Precisely. There is nothing "thin" in the California State Supreme Court's reasonging. Perhaps, you did not read the deicsion or perhaps you are not aware that the the State Supreme Court is the final authority on interpreting the State Constitution.

Clearly, the problem will go beyond California. It may end up with marriage becoming a federal rather than a state-defined institution, in which age requirements, etc., will be set. That is down the road. In the interim, California proceeded in accordance with state law, and they did so with integrity.

As for Judaism, as you know, like Christianity, our religioun is not monolithic. While your Judaism may preclude you from officiating at gay weddings, my rabbi's Judaism does not. In fact, my rabbi is gay.

More to the point. Pace Rev. Chane and Bishop Tully, marriage should be strictly a state-defined institution. Synagogues, churges, mosques, etc., may define a role for themselves that is extra-legal.

Paganplace misses the point. One does not set public policy or individual rights by asking the individuals what they would like for themselves...other than pollsters, of course. Our rights are the work of the authors of the Constitution, its editors, its interpreters, lawyers, courts, legislative bodies, synods, popes, bishops, rabbis, etc. and the 10% of the public which bothers to vote.
Don't confuse rights with preferences.

As long as marriage is a public affair in which the public has an interest, it is a matter for discussion and argument.

By the way, I favor extension of marriage to responsible parties who will honor it and seek to preserve it whatever their sex(es). This matter cannot be settled via a poll. It will require thoughtful input by all of us who are interested in its consequences.

Remember, remember, remember! The Law of Unforeseen Consequences is the highest law of the universe. Even God can't break it.

So basically the Courts telling roughly 89% of the population of the country to take a hike is good social policy? Please note every anti gay marriage proposal brought before a vote of the people has passed by over whelming margins.

What you are calling good social policy may well result not in less violence against gays but more and could well added on to more abuse of the majority -religious and otherwise in this country eventually result in catastrophic consequences for all of us. We are one good rabble rouser away from a nasty vicious little civil war as it stands right now and one the American Military will cheerfully sit out since in most cases there sympthies will lie with the revolt.

the court should not be stumbling into tradition. it was not the state that defined marriage, but the traditions of our civilization and history. when people came from all over the world we did not assimilate any single whole culture, but in organic fashion, not legal fashion, the US picked and choose whatever "fit" our mosaic. the british government recognized the reality of tradition, and promoted legal unions for gay couples. why does the US have to insist that we must go the whole hog on day one, that it is the state's business to decide the issue, worse, insist that the central government decide morality for the nation. oh, yes, this is also a moral question the state is deciding, and we all thought morality was a private affair.

How nice to see someone acknowledging the often overlooked reality that marriage has NOT always meant one man and one woman.

Everytime someone claims that the definition of marriage is eternal and can never be changed, I have to wonder just how deep their ignorance runs.

Sir:

Did I understand your first major point correctly, that the Court incorrectly found marriage to be a right in the constitution (of California). I quote you: " Simply asserting that marriage is a constitutional right does not make it so...". While I agree with your quoted comment in general, in this case you're just factually incorrect. I took the time to read the decision and the Court listed and explained at length the metioning of marriage as a right under the Constitution and went on to track many of the legislative and voter intiative based changes in the law over time (not judicial changes).

The Courts job is to interpret the law (including the Constitution and subsquent legislation), and in this respect they clearly did.

"With the thinnest of legal reasoning, they have opted to make social policy rather than adjudicate the law. Simply asserting that marriage is a constitutional right does not make it so..."

What, precisely, was 'thin' about the legal reasoning? And yes, actually, the Supreme Court of the State of California is the last authority on interpretation of the California State Constitution. So asserting marriage is a constitutional right does in fact make it so. They also asserted this right in 1948, with Perez v. Sharp, becoming the first court in the country to declare that interracial marriage was a fundamental right.

"...their ruling clearly rejects extending their new definition of equal protection to either polygamous marriages or those between close relatives."

Yes, as it should. There are compelling state interests in prohibiting incestuous and polygamous marriages. The primary interests are in preventing abuses that are inherent in such relationships. For polygamy, there is an inherent power imbalance, which as we have seen with the FDLS controversy, can result in perverse human rights violations. With incest, there are similar concerns, as well as the increased liklihood of health defects resulting from potential offspring of such couples. No compelling interest exists for denying same-sex couples marriage.

"The court could have done much to shore up the rights of gay couples’ access to all those rights (and obligations) which come with married status in California, without taking this legally unjustified step."

I'm guessing you did not actually read the California decision. If you had, you would know that same-sex domestic partners in California actually already enjoyed every right of marriage EXCEPT the title. In other words, there was nothing left for the Court to "shore up." The title was the only additional right that the Court was granting.

"So the question is bound to come up--what is the impact of homosexual marriage on the parties marrying and their "public"?"

Did you or anyone opposing equal rights for same sex couples even bother to *ask* before forming your 'opinion'?

"In fact, they have trumped the rights of individuals to make this decision"

By, what, not taking away their right to make it?

How backwards is that?

I'm not seeing your rationale, here, columnist.

Yes, you are right, this action by the court will cause people on both ends of the spectrum to dig in their heels. Discussion could become further polarized and more shrill. However, sometimes one needs to have the courage of a Rosa Parks and flout the status quo so that justice can move forward.

Both government and religious instituions express ongoing interest in marriage. Historically both have had a say in who marries, what happens in marriages, the "meaning" of marriage (is it sacramental or just a contract), what dissolves a marriage, how it is dissolved, and the "meaning" of the dissolution. Most of the time religion and government work together rather closely with respect to marriage and avoid trampling each others turf.

The major problems between the two seem to arise out of the impact of marriage on other people, the public, children, existing families, etc. While the constitution may guarantee the pursuit of happiness, we do not put a legal stamp of approval on marriages between 14 year old girls and 30 year old men. Yet some religions do allow and bless such unions. So the question is bound to come up--what is the impact of homosexual marriage on the parties marrying and their "public"?

The question has just barely begun to be addressed. When it does get into conversation, the shrillness of competing voices soon stifles real conversation. We have a task before us that involves a great deal of searching into questions of mutual interests before we leap off the diving board into an empty pool. Let's first fill the pool.