Waldlaw Blog

Thursday, March 26, 2009

Relying on the Integrity of the Court

I wrote an Op-Ed for The Daily Journal (California's largest legal newspaper, published in both San Francisco and Los Angeles) about the oral arguments on the constitutionality of Prop 8 in the California Supreme Court, which appeared in the paper on March 17. Since The Daily Journal isn't available on-line, I thought I'd reprint the piece here: The most painful part of the oral arguments on the constitutionality of Proposition 8, heard by our Supreme Court on March 5, 2009, came during the back-and-forth between the justices and Shannon Minter, Legal Director of the National Center for Lesbian Rights, during Minter’s rebuttal argument. Our Chief Justice, Ronald George, asked Minter to explain why it wasn’t fair to characterize Prop 8 as “eliminating the designation of marriage, eliminating the nomenclature, but not disturbing the Court’s recognition [in its May 2008 decision in In re Marriage Cases] of very important rights” accorded same-sex couples through domestic partnership. While Minter gave an eloquent response to the Chief Justice’s question, the best answer I have ever seen to that particular question should be very familiar to Chief Justice George. It was written by the Chief Justice himself in In re Marriage Cases. In In re Marriage Cases, Chief Justice George – writing for the majority – wrote that “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.” He went on to explain: “Whether or not the name ‘marriage,’ in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes – by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership – pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.” Chief Justice George, and the majority of Justices, concluded “that in the present context, affording same-sex couples access only 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.” The Court based this conclusion on three findings: (1) that “the long and celebrated history of the term ‘marriage’ and the widespread understanding that this term describes a union unreservedly approved and favored by the community” makes it “apparent that affording access to this designation exclusively to opposite-sex couples ... realistically must be viewed as constituting significantly unequal treatment to same-sex couples”; (2) that, “particularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships ... inevitably will cause [domestic partnerships] ... to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship”; and (3) that unfamiliarity with domestic partnership “is likely ... to pose significant difficulties and complications for same-sex couples, and perhaps most poignantly for their children, that would not be presented if, like opposite-sex couples, same-sex couples were permitted access to the established and well-understood family relationship of marriage.” Honestly, that seems to say it all. I have followed the California Supreme Court’s family law decisions for many years. I sat in the court during the oral arguments in the Nicholas H. case, when the court made clear its commitment to placing children’s needs at the center of its family law jurisprudence. I sat in the court during the oral arguments in first the Sharon S. case and later the Elisa B. case, when the court made clear its commitment to extending traditional family law protections to the children of same-sex couples. I read their In re Marriage Cases decision with awe, admiring both their insightfulness and their eloquence in explaining why respect for same-sex families required that these families be allowed to join in the institution of marriage. While I have not always agreed with our Supreme Court, I have come to admire them deeply for their integrity. Yet right now, I am afraid that they are getting ready to significantly compromise that integrity by acting like they didn’t say what they clearly said less than a year ago: that fundamental equality for same-sex couples – protected by our state Equal Protection Clause – requires that committed same-sex partners be allowed the opportunity to marry. I sincerely hope that my fears are unfounded. Reprinted with teh permission of Daily Journal Corp. (2009)


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