Numerous states have already adopted laws declaring that they will not recognize same-sex marriages from other states. Moreover, the Defense of Marriage Act makes clear that states are not required to do so. Thus, those states which wish to continue to deny basic marriage rights to their gay citizens will be free to continue to do so. Today's ruling applies only to California.This is the crux of the matter. At Babalu Blog, I've a civil debate going on with two critics of the California Supreme Court's decision. One ECM makes a valid point: the legislature could have over-ridden the governor's veto if a veto-proof majority in support of the legislation existed. I don't know the intricacies of the California legislature (ours is erratic enough), so maybe some of my readers on the west coast can chime in. So I remain cautiously optimistic. Were the voters to approve the constitutional amendment in November, critics of today's decision can rightly crow -- and study the quiet experiment in homo/hetero cohabitation happening in Massachusetts.
(4) The Court did not rule that California must allow same-sex couples the right to enter into "marriage." It merely ruled that if the state allows opposite-sex couples to do so, then same-sex couples must be treated equally. The Court explicitly left open the possibility that the state could distinguish between "marriage" (as a religious institution) and "civil unions" (as a secular institution) -- i.e., that California law could leave the definition of "marriage" to religious institutions and only offer and recognize "civil unions" for legal purposes -- provides that it treated opposite-sex and same-sex couples equally. The key legal issue is equal treatment by the State as a secular matter, not defining "marriage" for religious purposes.
Thursday, May 15, 2008
The usual blowhards make the tired arguments, but for the next six months at least homosexual couples can marry in California. Rebuttals to the judicial activism canard don't get better than Glenn Greenwald's (which also contains demurrals if you read carefully):
Posted by Alfred Soto at 6:38 PM