Jim Campbell: Reflections after oral argument in the California Marriage Cases
Reflections after oral argument in the California Marriage Cases By Jim Campbell, ADF Attorney It’s the day after the California Supreme Court heard oral argument in The Marriage Cases. The clamor has subsided; the parties have stated their case; and the dust has temporarily settled out West. Now the fate of marriage in California rests in the hands of seven robed elites. With so many issues coinciding in one case, I can’t help but wonder: When all is said and done, what legal issues are most likely to dictate the outcome of this case? Two thoughts jump immediately to mind. The first significant issue is the definition of the fundamental right to marriage. All the parties agree that a fundamental constitutional right to marriage exists. The question is whether that right should be defined broadly — to include marriages between all persons under all circumstances — or whether it should be defined traditionally, as it always has, between one man and one woman. At oral argument, the justices repeatedly sought clarity and insight on this issue. Chief Justice Ronald George and Associate Justice Joyce Kennard indicated through their questioning that perhaps the right should be defined broadly. Chief Justice George, in particular, kept returning to the language from the Court’s 1948 Perez decision (in which the Court struck down California’s ban on interracial marriage) stating that “the right to marry is the right to join in marriage with the person of one’s choice.” The opponents of the marriage laws jumped on that bandwagon, echoing that marriage should include the right to marry a partner of “one’s choosing,” whoever that might be. If the Court were to adopt such a far-reaching definition of marriage, it would inevitably lead to the invalidation of California’s marriage laws. Rest assured, however, that such a broad definition of the constitutional right to marriage is unprecedented (with the one obvious exception of the Massachusetts Supreme Judicial Court in Goodridge). A fundamental right is defined as one that is “so rooted in the traditions and conscience of our people as to be ranked as fundamental, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Of course, it cannot be said, at least not with a straight face, that “marriage” between anyone other than one man and one woman is deeply rooted in the history and tradition of society, American or otherwise. Thus, the Court should conclude that the traditional definition of marriage — the union of one man and one woman — is the only fundamental right protected by the California Constitution. Furthermore, Associate Justices Ming Chin and Carol Corrigan noted the many serious problems that will result from broadly defining this fundamental right to include the right to marry the partner of “one’s choosing.” For example, if the Court ventures down that slippery road, would the State be forced to permit a person to marry his sister, niece, or cousin? Or, moreover, must the State allow a man who feels love and emotion for numerous individuals to marry all of them? In other words, how far is too far, once we as a society leave behind the inherently binary structure of marriage received from nature? The attorneys advocating for the invalidation of traditional marriage were rendered speechless in the face of such logical propositions. In fact, one of the attorneys, Shannon Minter from the National Center for Lesbian Rights, stated that her reasoning would force the State to recognize polygamous “marriages.” Although Justices George and Kennard seemed to support the broad definition of the fundamental right to marriage, it appears that a majority of the Court is not willing to venture down that unchartered road of marital anarchy and familial chaos. The second important legal issue — the one on which I believe this case will ultimately be decided — is the operation of a democratic government, one empowered by the people. The California Constitution, unlike many other states, reserves a special right to the people to enact laws that possess a status higher than laws enacted by the legislature. In 2000, more than 60% of Californian voters enacted Proposition 22, which unequivocally affirmed the unchanging definition of marriage in the State of California as the union of one man and one woman. The California Constitution prohibits the legislature from enacting any laws that would invalidate, either directly or indirectly, any citizen-enacted proposition, which includes Proposition 22’s affirmation of marriage between one man and one woman. The opponents of California’s marriage laws urged the Court that changing notions of public policy demonstrate that marriage should now be extended to the same-sex couples. The glaring problem with this argument is that the public policy on marriage in California has already been settled with the passage of Proposition 22, which definitely established that marriage is the union of one man and one woman. Because Proposition 22 prevents the opponents of traditional marriage from appealing to vague notions of public policy in favor of same-sex unions, they are left without a valid legal argument in their arsenal. So, distilling this case to its essentials, the Court is left, on the one hand, with a California Constitution that does not explicitly address the issues of same-sex “marriage” or “sexual orientation” discrimination and, on the other hand, with a clear pronouncement from the people affirming marriage as the union of one man and one woman. In such a situation, the role of the Court is clear: defer to the people. Judging by his line of questioning, Associate Justice Marvin Baxter appeared to understand the Court’s limited role in California’s democratic system of government. Justice Corrigan also appeared to be tracking this reasoning, although I’m not sure she was totally convinced by argument’s end. Thus the people have spoken; the people have spoken clearly; and the people have spoken constitutionally. Any special interest groups or vague legislature-enacted public policy is irrelevant because, under the California Constitution, the people reign supreme. The proper ruling here — one that I’m hopeful the Court will reach — is to let the will of the people reign in this all-important social debate. So, out in the Wild West, the dust has settled momentarily, but the serenity won’t last; the Court is supposed to issue its decision within ninety days. So stay tuned . . . the future of marriage in California hangs in the balance.
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