Same-Sex Marriage

March 17, 2009

Irony or ironies, last year (2008), the day after Laurie and I left California for a writing sabbatical in Iowa, “same-sex marriages” began to take place in California. Then, the day after we left Iowa to return to California, the Iowa Supreme Court agreed to hear a challenge to the Iowa law that defines marriage as between a man and a woman. I am not suggesting that had we stayed longer in California or Iowa the result would have been different. Instead, it is a graphic illustration as to how our civilization is changing before our very eyes, even in places like the heartland of America.

Some who read this blog may not be fully aware of what has been happening here in California. As in all other states and all other countries (since the dawn of civilization) marriage was between a man and a woman (yes, at some point in history there have been societies that did allow more than one spouse—(polygamy)–but these were still heterosexual relationships). Thirty years ago no one thought much about same-sex couples being married. In the 1970s some Californians noticed that state law never formally defined marriage as between one man and one woman, even though that is what everyone understood marriage to be. But just in case, marriage in California was officially defined as between a man and a woman via a statute passed by the California State Legislature in 1977.

By the mid-1980s there were still some states in the United States that criminalized same-sex behavior. In 1986, in the case of Bowers v. Hardwick, a Georgia statute that criminalized homosexual activity was challenged before the United States Supreme Court. The Court held, 5-4, that it was constitutional for states to criminalize such activity.

Despite millennia of laws and practices recognizing marriage as a relationship between one man and one woman, and despite the United States Supreme Court ruling in Bowers v. Hardwick, the 1990s saw a growing chorus of homosexual activists agitating for recognition of same-sex relationships. Given the decline in societal values, and the replacement of Judeo-Christian, traditional morality with a secular moral relativity, it was only a matter of time before the marriage debate took center stage. In 1991 I wrote, “It is not difficult to anticipate a time in the near future when cohabitation by persons of the same sex will be afforded the same legal status as traditional, heterosexual marriage. In fact, the practice of homosexuals participating in formal ‘marriage’ ceremonies has been going on for years. It’s only a matter of time before jurisdictions ratify such activity as constituting lawful marriage.” (God in the Chaos, p. 36, Harvest House, 1991).

In spite of warnings from myself and others who saw the handwriting on the wall, few people took the “marriage debate” seriously until court decisions in the State of Hawaii got the nation’s attention. In 1993 the Hawaii Supreme Court suggested that denying state recognition of same-sex couples might constitute “sex discrimination.” The Hawaii Supreme Court sent the matter back to the trial court, which, in 1996, found that Hawaii’s state marriage laws violated the state’s “Equal Rights Amendment.”

These events in Hawaii served as a shot across the bow, alerting America that traditional marriage was under attack. The court decisions in Hawaii were the catalyst for the United States Congress stepping in and passing the federal Defense of Marriage Act (“DOMA”) in 1996. The federal DOMA defines marriage in federal law as a legal union between one man and one woman, and provides that no state of the United States is required to recognize same-sex relationships, even if recognized in other states.

Back to California, in the late 1990s there was concern that some of the more “liberal” states in the United States would allow same-sex marriage (perhaps, at that time, California did not see itself as being “progressive” as many do today). In order to make sure California would not have to recognize same-sex marriages, petitions were signed, and a proposed law was put on the March 2000 ballot that read, “Only marriage between a man and a woman is valid or recognized in California.” Known as “Proposition 22,” this proposal to define marriage in the traditional way was overwhelmingly passed by the voters of California, receiving 61.4% of the vote.

Even though the people of California had spoken, rather than accepting the “will of the people” as binding, same-sex marriage advocates did an “end-run.” They filed legal challenges to Proposition 22, with hopes of finding a sympathetic judge who would strike down Proposition 22. Even though over four million Californians voted for Proposition 22, one judge, Richard Kramer from the San Francisco Bay area, decided he knew better, and struck down the voter-approved law defining marriage as between a man and a woman.

In early 2007, a California appeals court reversed Judge Kramer, and a showdown loomed in the California Supreme Court, which in the fall of 2007 had agreed to hear the challenge to Proposition 22. I wrote one of the amici curiae (“friends of the court”) briefs arguing that Proposition 22 should be upheld.

Those who wanted to protect traditional marriage were concerned that the California Supreme Court might strike down Proposition 22. Therefore, petitions were once again circulated, this time to place a proposed constitutional amendment on the November 2008 ballot that would define marriage as between a man and a woman. The difference between Proposition 22, which became a statute when passed, and the proposed constitutional amendment, is that the State Supreme Court can strike down statutes that it finds violate the state constitution. However, since the Constitution of California is the supreme law of the state, reflecting the sovereign right of the people to determine how they shall be governed, the Constitution is therefore presumptively above the reach of the Supreme Court.

In March 2008 the State Supreme Court heard oral arguments on Proposition 22. On May 15, 2008 the Court, in a 4-3 vote, struck down Proposition 22. The Court found that there was a fundamental right to marriage in the State Constitution, and that “right” extended to same-sex couples. The Court ruled that homosexuals were a “suspect class” requiring the Court to strictly scrutinize any law that infringed on their right to marry the person of their choice. The Court found there was no compelling state interest in keeping marriage between opposite sex couples that was sufficient to deny same-sex couples their “fundamental right” to marry a person of the same sex. Thus, the Court ruled that same-sex couples would be allowed to marry in California.

Just a couple of weeks after the California Supreme Court’s decision regarding Proposition 22, the proposed constitutional amendment to define marriage as between a man and a woman qualified for the November 4, 2008 ballot. As a result, the Court was asked to stay the commencement of same-sex marriages until the November election. Part of the argument for staying the May 15 decision was that if the Court allowed same-sex marriages to take place, and if the new constitutional amendment passed, it would create chaos and uncertainty as to the validity of the same-sex marriages that would take place up to the election on November 4. The Court denied the request for a stay and ordered that same-sex couples could be legally married commencing June 17, 2008.

From June 17 until November 4, 2008, some 18,000 same-sex “marriages” took place in California. Unlike Massachusetts, which in 2005 allowed same-sex marriages for residents of Massachusetts, the California ruling did not require any residency for same-sex couples wishing to marry. As a result, same-sex couples came from all over the United States and many foreign countries to get married.

The proposed constitutional amendment defining marriage as between a man and a woman (using the exact same 14 words as Proposition 22) became “Proposition 8.” Each side of the issue raised and spent millions of dollars trying to convince Californians to vote their way. Laurie and I participated in a town hall meeting, a debate at Whittier Law School, a panel discussion at Chapman University School of Law, and a marriage documentary, advocating the passage of Proposition 8. Emotions ran high, and there were hundreds of reports of “Yes on 8” signs being stolen or vandalized (compared to only a couple of reports of “No on 8” signs being stolen or defaced). Finally, by late in the evening on November 8, it was clear that Proposition 8 had passed, and the words “only marriage between a man and a woman shall be valid or recognized in California” became part of the State Constitution.

Remember the end-run around Proposition 22 (in other words, a run to court to find a sympathetic judge to overturn the will of the people)? The day after the November 4 election three challenges were filed against Proposition 8. Not only lay people, but even attorneys asked, “How can anyone challenge a Constitutional amendment, since by definition the Constitution is the final word on an issue?” Never underestimate the cleverness of lawyers with an agenda. The primary argument that Proposition 8 should be stricken claimed that the 14 words constituting Proposition 8 were actually not an “amendment” to the Constitution, but a “revision.” A “revision” is a wholesale change in the structure of the government, and “revisions” must be first passed by the legislature before being voted on by the people. And, of course, the California legislature in 2008 never did (and never would) support keeping marriage between a man and a woman. Thus, the argument went, since Proposition 8 is actually a “revision” (because it allegedly denies equal protection to same-sex couples, and equal protection permeates the State Constitution, and that constitutes a wholesale change in the structure of government), Proposition 8 should be stricken.

On March 5, 2009, the California Supreme Court heard oral arguments on the challenge to Proposition 8 (now Section 7.5, Article I of the California Constitution). The questions from the bench have caused most observers to conclude the Court will uphold Proposition 8. (Laurie and I have a side bet—she thinks Proposition 8 will be upheld 5-2, I think it will be 6-1 or better.)

If the Court upholds Proposition 8, then it must further decide what to do with 18,000 same-sex marriages that the California State Constitution now says are not “valid or recognized.” Most observers of the March 5 Supreme Court hearing (again, based on their questions and comments) think the Court will allow those marriages to remain valid. It is difficult to see how that could be, given the clear language of the amendment (not “valid or recognized”).

When asked about whether Proposition 8 should be applied retroactively (i.e., to marriages that took place between June 6 and November 4), the advocate supporting Proposition 8, Kenneth Starr, Dean of Pepperdine Law School and former Solicitor General of the United States, said it was not “retroactive.” However, Dean Starr argued that based on the language of the amendment, from November 4, 2008 same-sex marriages are no longer valid or recognized. This position seems to be the only reasonable one, given the clear language of the constitutional amendment. Those sympathetic to the 18,000 same-sex couples believe (and hope) that the Court will not “invalidate” their marriages. It is possible that the Court will, despite the clear language of the Constitution, allow those 18,000 marriages to still be called “marriages,” which presents a whole new set of problems (e.g., how is that “fair” to same-sex couples that missed the May to November window of opportunity to get “married?”).

 Despite the prediction that the Court will allow those 18,000 same-sex marriages to continue, I am holding out hope that the Court will rule that those same-sex “marriages” were valid until November 4, 2008, and are now no longer valid as “marriages,” but are valid as “domestic partnerships.” The Court has 90 days from March 5, 2009 to rule on the challenge to Proposition 8.

Most same-sex couples believe the threshold issue is “personal autonomy” and “recognition” of the validity of their relationship. No one denies that people of the same sex can be attracted to one another (most studies suggest that about 2-3% of the population is homosexual), and can be committed to one another. The State of California provides that such couples can be legally recognized “domestic partners,” which provides the exact same rights and privileges to same-sex couples that are afforded to married heterosexual couples. California Family Code §297.5(a). The only difference is that domestic partners cannot call themselves “married.” Thus, the entire brouhaha over “marriage” is over the nomenclature. To me, and to every civilization in recorded history, marriage is a relationship with procreative potential that serves as a protection to the children that may spring from the marriage. This creative potential, by itself, sets apart opposite sex relationships of one man and one woman from any other type of relationship.

If the California Supreme Court does uphold Proposition 8 (Article 7.5, Section I of the California State Constitution), is the war over? Far from it. On January 26, 2009 a proposed constitutional amendment initiative was submitted to the California Attorney General’s office that would repeal Proposition 8. On March 9, 2009, a Title and Summary was issued by the Attorney General’s office for a proposed constitutional amendment which would have the term “marriage” removed from all government legislation. In short, this amendment would eliminate all state-recognized marriages in California and would relegate the State of California to only provide “domestic partnerships.” If enough signatures are gathered, these two proposed amendments will appear on the 2010 California ballot.

This latter proposal is similar to what has happened recently when a Christian club wanted to meet on a secular high school campus which allows other non-curriculum-related clubs, such as chess clubs, ski clubs, and, yes, even “gay and lesbian” clubs. After the Christian club was denied the request to be a recognized club, the issue was taken to court, and the court upheld the right of the Christian club, ruling that to do otherwise would be “viewpoint discrimination” (i.e., because of their beliefs or views, they are singled out and denied access). In the recent case, rather than implementing the court’s decision to allow the Christian club to meet, the school eliminated all clubs. Talk about cutting off your nose to spite your face!  Now the same-sex marriage proponents are essentially saying, “If we can’t be married, then you heterosexuals can’t be married, either.” So much for tolerance.

Finally, lest you wonder whether I am imbibing the secular kool-aid of moral relativity and the post-modern kool-aid of subjectivity (having thus far not raised any biblical arguments in support of traditional marriage), I also believe that God ordained marriage to be between a man and a woman. Genesis 2:24 provides the divine principle: “For this cause a man shall leave his father and his mother and shall cleave unto his wife, and they shall become one flesh.” And just in case someone thinks that Genesis is mere mythological tradition, the correctness of the marriage principle found in Genesis 2:24 is repeated—by Jesus Christ—in Matthew 19:4-5: “Have you not read, that He who created them from the beginning made them male and female, and said ‘For this cause a man shall leave his father and his mother, and shall cleave to his wife, and the two shall become one flesh?’” I cast my vote (figuratively and literally) with tradition, with reason, with the Creator, and with Jesus.