We recoil at the idea of a code, but go to the California Family Code.
See how elaborate it is, including who one can marry. What we do know is there are profound limitations on state power, and we should be thankful for those limitations, especially with respect to the idea of invidious discrimination and seizing and hijacking the marriage relationship in order to achieve apartheid-type values.
History of the Same-Sex Marriage Debate
Now the international conversation is underway, and this is my final point. Friends, look at the list of countries that have this conversation actively underway, but have not embraced same-sex marriage. A very small minority of countries do in fact allow it. And why is that? Thank you. My colleague Shannon Minter has already set forth some of the essential arguments we have [presented] in the California litigation. I want to briefly introduce a few federal topics and then discuss the relationship of religion to our topic today.
First, I want to offer a few words about recent efforts to enact the so-called Federal Marriage Amendment to the U. Neither this Constitution nor the constitution of any State shall be construed to require that marriage or the legal incidence thereof be conferred upon any union other than the union of a man and a woman. The amendment will prohibit states from treating their own residents as married couples. Moreover, it is conceivable, though not definite, that such language might be construed as prohibiting states through their own republican institutions or direct democracy from choosing to recognize the marriages of couples within their states.
By its terms, the proposed amendment would mandate to every state court how it is to interpret its own state constitution and laws. Presumably, some marriage amendment supporters are those who argue in other contexts — such as that of restricting federal court habeas jurisdiction — that the state courts should be afforded substantial respect in the conduct of their judicial proceedings, the interpretation of their state laws and the application of federal constitutional principles.
The alarming intrusion into state sovereignty that the Federal Marriage Amendment would represent should be cause for vigilance, not simply by those who favor marriage equality for gays and lesbians, but also by those who believe in limited federal power. The Federal DOMA has two provisions: one provision purports to authorize states to ignore the official acts of other states regarding the marriages of same-sex couples. That provision goes so far as to say no state shall be required to give effect to any judicial proceeding of any other state, [or] respect any right arising from a marriage of a same-sex couple.
A basic reason our federal system works is that the various states credit the official acts of the others. Though each state is sovereign, all the states are interdependent, and their sovereignty depends to a certain extent on each state showing basic respect for the official acts and judicial proceedings of the other states. This is so regardless of whether marriage licenses themselves fall under the Full Faith and Credit Clause. Judgments of state courts certainly do. In addition, it cannot be overemphasized how offensive it is for the federal DOMA to single out same-sex couples who are married for such disfavored treatment under the law.
The exact meaning of this portion of DOMA is not clear. DOMA is a massive exception. The federal government, however, has no legitimate reason for refusing to recognize the marriages of same-sex couples in Massachusetts while recognizing heterosexual couples in Massachusetts.
Certainly the federal government lacks any legitimate interest in trying to steer gays and lesbians, particularly those who are already in committed same-sex relationships, into heterosexual marriages instead.
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The government shows marked disrespect for the institution of marriage by refusing to recognize the valid marriages of same-sex couples in Massachusetts. Supreme Court in the Romer v. Evans case. There are over 1, federal statutory protections associated with marriage. Wholesale disqualification from these protections of same-sex couples who are validly married reaches too broadly and plainly reflects impermissible animus against same-sex couples. Briefly, I want to address the role of the federal courts and the federal Constitution with respect to which marriages the states may or must recognize.
There are two salient principles here. Second, however, it is fully consistent with our federal system for the Constitution rightly to be regarded as placing restrictions on forms of discrimination in state family law or intrusions in family privacy. Some examples: the U. Supreme Court has told the states they are constitutionally prohibited from banning marriages between persons of different races.
Supreme Court has told the states that the inmates in their prisons must be permitted to marry. Supreme Court has also told the states that they must permit married couples to use contraception; that is, to choose not to procreate. Finally, I would like to conclude with some thoughts about the role of religion in the debate regarding marriage equality. As an initial matter, it must be remembered that religion does not speak with one voice on this issue.
Though some religions vocally oppose the marriages of same-sex couples, there are many religious bodies in America today that consecrate the marriage of same-sex couples including the United Church of Christ, Reformed Judaism, certain Buddhist communities, the Unitarian Universalist church and many others.
To same-sex couples who practice religion within these traditions, the religious sacrament of marriage is as central to their religious and social lives as it is to heterosexual couples whose marriages are recognized by their religions. The fact of the matter is there is not a religious consensus on the issue of which civil marriages should be recognized, anymore than there is a religious consensus on divorce.
This should be irrelevant to the state of California or any other government in this nation, whether most religions believe one thing or another.
I suspect there are numerous activities that the Constitution of California protects that may be frowned upon by the religions of the majority. Texas is that moral disapproval of a group of people, standing alone, is not sufficient to supply a rational basis for a state law. One, nevertheless, frequently hears the objection that the state should not recognize marriages of same-sex couples because it would somehow infringe on the free exercise of religion by those whose religions disfavor same-sex relationships. The argument apparently is that even in civil life, religious people should be exempt from treating same-sex couples as married.
That complaint has no validity under the law. A few examples make plain why that is a good thing: religious objection to interracial marriages was strong just decades ago and may still be strong in some circles. There is no need to defend marriage against such families and their children, but there is every reason to welcome those families into marriage.
But I guess we did in a bit [sic]. Let me take the issue with a couple of points David made. I have a slightly different take on the Lochner point Dean Starr made because I do agree there are some issues where you cannot simply leave it to the deliberative democratic process.
We do have constitutional protections against majority tyranny. The issue for us is, is this is one of those kind of rights? Instead, both purported to apply rational basis review, the lowest level of scrutiny that the courts give to legislative judgments. Could the legislature reasonably have thought that its restriction might further that legitimate governmental purpose?
Of course, the answer to that in both contexts is yes. She could conceive of no rational basis for a marriage law that distinguishes between heterosexual and homosexual couples even with respect to the procreation and rearing of children. The equal protection clause at its core is to guarantee equal treatment for equal things, not equal treatment for unequal things or unequal treatment for equal things.
The relative question here for us is: With respect to the procreation of children, are there any differences between heterosexual and homosexual couples that the law can recognize? The reason we have marriage laws as a foundation of society is that as members of the society, we all draw benefits from that institution, in procreation and rearing of children by the two people in the universe who are most adapt at making sure that job gets done right: the natural parents.
Before you continue...
That can only exist most readily in a heterosexual marriage by the natural parents. That father remained an inspiring omnipresence in the home. They are right. The social science we have on gay couples is relatively in its infancy. There are some early studies out that, quite frankly, are politically driven, methodologically flawed and have been pretty solidly rebutted. What are the consequences if we get this wrong, and why is it so important to listen?
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This professor I mentioned at the BYU conference talked about how important marriage is and how we have fundamentally changed it in our history. What he was talking about was the advent of the no-fault divorce rules in the s and early s, initially driven by court decisions, subsequently then adopted by legislatures. The number of out-of-wedlock births, the number of children in prison or youth facilities, the teenage suicide rates, all of these things have skyrocketed — skyrocketed — since those decisions in the s.
Has any study proved a direct correlation between those two yet? This is not just the people who support the old model. Now, that many not have any consequences for us as a society, but I think the no-fault divorce model demonstrates to us that in fact the consequences may be huge and profound, and we as a society absolutely must engage in a debate before we take this step.
We may well end up one place and realize 50 years from now we made a grievous mistake on either side, but it is a policy debate, as Judge Starr pointed out, that absolutely requires us to utilize the democratic institutions, not the aristocratic institutions, of our government. Let me close as [with words from] Abraham Lincoln as he dealt with an issue similar to this: whether we were going to have the courts take us out of a policy debate in response to Dred Scott. We need to have this debate civilly on policy grounds before we make one of the most radical changes in one of the most basic foundation blocks of our society.
Let me start off. One of the themes that seemed to run through several of the presentations was the question of who decides this issue? At least three of our speakers talked about that and then John you went on to talk about the tyranny of the majority, I guess alluding to John Stewart Mill and Tocqueville, and also tying in the ideas of fundamental rights. The question then is who decides who decides?
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When is there a fundamental right identified, and how do we get to that point? He would look to the two sources of how we define fundamental rights, the same sources I think Jefferson looked to when he penned the Declaration of Independence. Those two components have both been rejected by the courts in this discussion.
The briefs filed in the Lawrence case and the opinions in the Lawrence case reject any notion that we can have a moral view about this that guides what defines fundamental rights, even though it has been defined that way for centuries, but also rejects the notion of reason. Saying that we cannot distinguish between heterosexual and homosexual couples even with respect to the rearing of children is a proposition that simply ignores basic rational thought.
With respect to the equal protection clause, we have powerful arguments that the marriage exclusion here in California discriminates based on sexual orientation and discriminates based on sex and so therefore [should] be subject to heightened scrutiny by the California courts. These laws cannot stand simply because there might be some rational basis for them. Rather the state must show a compelling reason and show that these laws are narrowly tailored to meet that compelling reason. That said, even under state law in California there has been no rational basis set forth for this law that can survive even the lowest level of rational basis review.
The California Supreme Court does not blindly defer to the legislature.
Rational review in California has some bite. In fact, the U. So there are powerful arguments [as to] why the courts do have a role to play here.
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