Gay marriage: Where to now?


Today’s question: Where to now for gay marriage in California? All week, Alliance Defense Fund senior counsel Glen Lavy and Jon W. Davidson, legal director for Lambda Legal, debate the future of same-sex marriage in California and the country following the state Supreme Court’s decision last week.

Put the decision on hold until November
Point: Glen Lavy

Now that the California Supreme Court has redefined “marriage” to encompass same-sex couples, the obvious question is, “what’s next?” Fortunately for the 4,618,673 California voters who enacted Proposition 22 and whose rights were trampled by the Supreme Court, the issue of the meaning of “marriage” is well on its way to again being decided by the ultimate power in California: the people. They can amend the state Constitution and protect the meaning of marriage in California from any future tampering.

The California Constitution clearly delineates the separation of powers among the executive branch, the Legislature and the courts. The majority opinion acknowledged that redefining “marriage” would be a violation of that separation of powers and insisted that it did not redefine marriage. Its assertion rings hollow. As Justice Marvin R. Baxter so eloquently opined in his dissent, the majority, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves. ... The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.”


True, the majority did not take the forthright approach of the Massachusetts Supreme Judicial Court, which acknowledged in a 2003 decision that it was indeed redefining “marriage.” But the result is the same. The right to marriage in California, and indeed throughout the entire English-speaking world before 2000, always meant the right of a man and a women to enter a legal union. No California judicial decision previously defined “marriage” in any other way. Yet without citing any legal authority, the majority defined “marriage” as, first, “the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage”; second, “the right of an individual to enter into a consensual relationship with another person”; third, “the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship”; and fourth, “the right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice.”

The majority’s redefinition of “marriage” was an unavoidable first step in striking down the will of the people. That’s because none of the arguments for same-sex “marriage” make any sense whatsoever if “marriage” means the legal union of a man and woman. Only by removing the universal opposite-sex meaning from the term could the majority then rule that same-sex couples have a right under the California Constitution to marry. That redefinition was essential for the majority’s ruling both under the fundamental right to marriage theory and the equal protection theory.

In November, California voters will vote on marriage again. Prior to last week’s one-vote majority decision, support for the marriage amendment led the opposition by less than 10%; with the majority’s serious overstepping of judicial power, that gap is likely to widen significantly. If the court respects the principles of separation of powers, prudence dictates that it should delay implementation of its ruling until after California’s ultimate authority -- the voters -- make their determination about the meaning of marriage.

Glen Lavy is senior counsel with the Alliance Defense Fund, a legal alliance of Christian attorneys and like-minded organizations dedicated to protecting religious liberty, the sanctity of life, marriage and the family. ADF and Lavy have been involved in gay marriage across the country, including the recent decision from the California Supreme Court.

Minorities’ rights shouldn’t be voted away
Counterpoint: Jon W. Davidson

It’s good to engage with you, Glen, as I think the more people think about these issues, the more likely they are to support marriage equality.

The understanding of legal concepts such as marriage have changed throughout history. The definition of civil marriage once included that such unions had to last for life without the possibility of divorce. In biblical times, husbands were allowed to have multiple wives. Civil marriage used to make wives subject to their husband’s total control. And, until 60 years ago, California law provided that the relationships of white and non-white partners were not marriage. The California court’s majority opinion aptly quotes the U.S. Supreme Court’s observation in 2003 that “times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” That is certainly true of past changes to the meaning of marriage, and that’s why the current generation increasingly understands that excluding same-sex couples from the joys, stature and respect of marriage is wrong.

The fact that a denial of equal dignity rests on tradition does not make it immune from challenge. If that were the case, the historical definition of a jury as made up only of men would still prevail. If the proposed constitutional amendment to once again ban gay marriage in California qualifies for the ballot, we believe voters will agree that none of our sisters or brothers should be excluded from equality under the law. All gay people are asking for is that others follow the Golden Rule and treat us as they would like to be treated -- as full members of society who are provided the same right to marry the person they love, just as everyone else is treated.


Courts have a solemn responsibility to enforce the Constitution, which, as California Chief Justice Ronald M. George noted, sets forth “the ultimate expression of the people’s will” and serves as a guide for generations to come. That’s why amending the state Constitution to take away some people’s rights and forever treat them as second-class citizens is a very dangerous proposition. Who’s next? What would keep the people from voting to deny equal marriage rights to any other group that isn’t the majority? As the German Lutheran pastor, Martin Niemöller, famously said, if we do not stand up for other people’s rights, we risk having no one to stand up for us when we may be next.

Once same-sex couples start to marry, Californians will understand that this is not about abstract propositions but real-life families. Protecting those families from having their newly won rights taken away will motivate fair-minded voters like nothing we’ve seen before. This explains why some people so desperately want to keep same-sex couples from marrying before November.

We believe the court correctly will see through this ploy to continue denying some people their rights solely to make it easier to take them away forever. And we are confident that, when people see those whom they care about marry, it will be clear as a wedding bell that no one is hurt by providing gay people’s families equal access to marriage, and that being fair to everyone makes us all a better people.

Jon W. Davidson is the legal director of Lambda Legal, a nonprofit legal organization dedicated to protecting the civil rights of lesbians, gay men, bisexuals, transgender people and those living with HIV. Lambda Legal was counsel in the case that led to last week’s decision from the California Supreme Court.

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