As I have watched the genderless marriage debate rage in California since the Ides of May, 2008 I have been amazed–perhaps even impressed at the effectiveness of the genderless marriage proponents to convince the electorate that this is an equal rights or fundamental rights issue.  While I vigorously disagree with that proposition (as I will explain in greater detail in this post), I think the genderless marriage proponents have done a incredible job of wrapping the debate in the cloak of equal protection and fundamental rights.

Let me start with the concept of just what a fundamental right is and what historically it has been construed to be, at least from a constitutional standpoint:

Only rights that are “objectively, ‘deeply rooted in this Nation’s history and tradition,’  and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ ” are recognized as fundamental.  See Washington v Glucksberg  521 U.S. (1997) at 720-21.

Of course, the lower appellate court decision which the California supreme court reversed is no longer good law; however, that does not vitiate the validity of their analysis or argument.  And, I think the lower court’s analysis of the fundamental right and genderless marriage is much more persuasive than is the majority’s in the supreme court’s opinion.  I might also add the lower appellate court decision is also in harmony with the vast majority of appellate courts around the country which have considered these legal arguments:

Even the recent history of the last 50 years, however, does not demonstrate the existence of a “deeply rooted” right to or practice of same-sex marriage. While same-sex relationships have undeniably gained greater societal and legal acceptance, the simple fact is that same-sex marriage has never existed before. The novelty of this interest, more than anything else, is what precludes its recognition as a constitutionally protected fundamental right. . . [“A definition of marriage only recognized in Massachusetts and for less than two years cannot be said to be ‘deeply rooted in this Nation’s history and tradition’ of the last half century”]; see also Coshow v. City of Escondido, supra, 132 Cal.App.4th at p. 709 [noting the “mere novelty” of an asserted fundamental right “is sufficient to create a doubt” whether it is so deeply rooted in our country’s traditions and conscience as to be considered fundamental]; Duncan, Legislative Deference & the Novelty of Same-Sex Marriage (2005) 16 Stan. L. & Pol’y. Rev. 83, 86 [“To this point, no court has ever held that same-sex marriage is deeply rooted in a state’s history and tradition”].)

I think that both liberty and justice will continue without American Jurisprudence recognizing genderless  marriage–nor can I envision genderless marriage as implicit in the concept of ordered liberty. I can think of no reasonable or rational argument to suggest that if same-sex couples are not allowed to use the term marriage to describe their relationships that either liberty nor justice would cease to exist–because a so-called right to same-sex marriage had been sacrificed.   That’s just an unsupportable conclusion, particularly in light California’s legal protections already afforded to registered domestic partners even before this decision.

OK.  Let’s take a look at some of the other appellate courts around the United States, which have considered and published opinions on these legal issues.  Again, it is important to keep in mind that the California supreme court, the MA supreme court, and now the Connecticut supreme court reflect the extreme minority legal position in the United States state court decisions.  The vast majority of state appellate courts have reached opposite conclusions.  Most legal decisions have reaffirmed the traditional definition of marriage as both legal and an appropriate state distinction to make.

Let’s start with the New York supreme court, arguably one of the most well respected and certainly well established state supreme courts in the country, see Hernandez v Robles (2006) 855 N.E. 2d 1.  The Hernandez court has an excellent analysis and discussion of the often repeated argument made by genderless marriage proponents:  That genderless marriage rights are the same as the old interracial marriage cases and rights discussed therein.  I disagree, as do the vast majority of state court justices who have considered these arguments. Discussing this analogy, the Hernandez Court stated:

If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice—if we agreed with plaintiffs that it is comparable to the restriction in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), a prohibition on inter-racial marriage that was plainly ‘‘designed to maintain White Supremacy (id. at 11, 87 S.Ct. 1817)—we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving. But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries—at first by a few people, and later by many more—as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950’s and 1960′s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non–Discrimination Act four years ago (L. 2002, ch. 2).

But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

Very clear and stark differences between the Loving (and in California Perez) cases and the current claims of genderless marriage advocates.  Critical distinctions–

1.  Man/Woman marriage distinctions not based on prejudice, as were the interracial marriage cases;

2.  Historical background of the interracial marriage cases far different from the history of the genderless marriage cases;

3.  America fought a civil war to eliminate slavery, racism and unequal protection of African Americans;

4.  Man/Woman marriage definition not merely a byproduct of historical injustice;

5.  Genderless marriage relatively new concept;

6.  Courts should not conclude (or society in general) that those believing in man/woman marriage only are irrational, ignorant or bigoted.  (Indeed we are not).

The Hernandez court also rejected the fundamental right analysis of genderless marriage.  It essentially mirrors the discussion above, and I won’t repeat it here.  In short, marriage is a fundamental right; but, genderless marriage or same-sex marriage is not a fundamental right because it doesn’t meet the constitutional definition.  It is not deeply rooted in this nation’s history.  It is a relatively new concept.

The Arizona appellate court in Standhardt v Superior Court (2004) 77 P.3d 451also considered and rejected the interracial cases analogy based on Loving, and promoted by the genderless marriage proponents:

Petitioners assert that because the “freedom of choice to marry” recognized in Loving is unrestricted, it encompasses the right to marry anyone, including a same-sex partner, even in the face of traditional, societal disapproval of such unions. We disagree.

Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman. 388 U.S. at 12 (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”) (citation omitted); Baehr, 74 Haw. at 552-55, 852 P.2d at 55-56 (discussing Supreme Court opinions construing fundamental right to marry and concluding right “presently contemplates unions between men and women”). Thus, Petitioners’ citation to other examples of traditional marital principles that have collapsed over time similarly do not persuade us that the fundamental right to marry includes the freedom to choose a same-sex spouse. See, e.g., Bradwell v.
Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring) (recognizing married woman could not enter a contract without husband’s permission); Joyner v. Joyner, 59 N.C. (6 Jones Eq.) 322, 325 (1862) (“It follows that the law gives the husband power to use such a degree of force as is necessary to make the wife behave herself and know her place.”).

These shifts in principles governing marriage have involved aspects of the marital relationship that are extrinsic to its core meaning: the legal union between one man and one woman. While Loving expanded the traditional scope of the fundamental right to marry by granting interracial couples unrestricted access to the state-sanctioned marriage institution, that decision was anchored to the concept of marriage as a union involving persons of the opposite sex. In contrast, recognizing a right to marry someone of the same sex would not expand the established right to marry, but would redefine the legal meaning of “marriage.” We
therefore conclude that Loving does not mandate a conclusion that the fundamental right to choose one’s spouse necessarily includes the choice to enter a same-sex marriage.

Critical distinctions:

1.  Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman;

2.  Other examples of traditional marital principles that have collapsed over time similarly do not create a fundamental right to genderless marriage;

3.  Marriage’s core meaning is the legal union between one man and one woman;

4.  The Loving analysis was anchored to the concept of marriage as a union involving persons of the opposite sex, i.e. a man and a woman.  The result would have been much different if genderless marriage was the issue;

5.  Recognizing a right to marry someone of the same sex would not expand the established right to marry, but would redefine the legal meaning of “marriage”;

6.  Loving does not mandate a conclusion that there is a fundamental right to genderless marriage;

7.  Loving dealt with an impermissible racial classification, expressly prohibited by the 14th Amendment.  It did not deal with the wholesale redefinition of marriage.  This is where the analogy really breaks down.

The Indiana appellate court in Morrison v Sadler also considered and rejected the interracial court case analogy:

Before considering the Plaintiffs’ contentions based on the Indiana Constitution, it is helpful to briefly mention federal law in this area as it helps explain both the Plaintiffs’ and the State’s approaches to this case. The Plaintiffs make no explicit argument that Indiana’s limitation of marriage to opposite-sex couples violates the United States Constitution. There is binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution.  In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court held that a ban on same-sex marriages did not violate the Fourteenth Amendment. In so holding, the court rejected the same-sex couple plaintiffs’ principal argument that Loving v. Virginia,  388 U.S. 1, 87 S. Ct. 1817 (1967), required that they be issued a marriage license. The court stated that Loving, which held bans on interracial marriages violated the Fourteenth Amendment, was decided solely on the grounds of the patent racial discrimination of such statutes.  Baker, 191 N.W.2d at 187. It also stated, “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Id.

The couple appealed to the United States Supreme Court, which dismissed the appeal without opinion “for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37 (1972). Under procedural rules in effect at the time, the Plaintiffs do not contest that, unlike a denial of certiorari, such a dismissal represented a decision by the Supreme Court on the merits that the constitutional challenge presented was insubstantial, and which decision is binding on lower courts. See Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 2289 (1975). Thus, the Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment. In light of this precedent, the Plaintiffs have not made a Fourteenth Amendment argument in this case.

Significant points:

1.  No argument that Indiana’s man/woman distinctions violated United States Constitution;

2.  United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution;

3.  In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court held that a ban on same-sex marriages did not violate the Fourteenth Amendment. In so holding, the court rejected the same-sex couple plaintiffs’ principal argument that Loving v. Virginia;

4.  In commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex;

5.  The United States Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment.  This is critical.  This is also why genderless marriage advocates pursue state court litigation.  They know they have no federal constitutional arguments to make that will carry the day in federal courts.  It is also critical in that the United States Supreme Court rejects the same Loving analysis and arguments that genderless advocates make in state courts, and which the California supreme court for some reason accepted.

Another good analysis of the genderless marriage arguments is in the Washington State supreme court case of Andersen v King County.  It is a long decision, but I think a good one.  I want to focus on the court’s discussion of the suspect class argument raised in that case.  In the California supreme court decision, it created a new suspect class, i.e., sexual orientation.  Or, in other words being a member of the class of persons known as gays or lesbians confers special constitutional protections.  The Washington supreme court refused to create such a new constitutionally protected class.  It concluded:

In light of the lack of a sufficient showing of immutability and the overwhelming authority finding that gay and lesbian persons are not a suspect class for purposes of the equal protection clause, we decline to conclude that gay and lesbian persons constitute an inherently suspect class for purposes of article I, section 12.

I am going to post the entire discussion for those of you who have nothing better to do than read a long legal analysis of why the Washington court declined to adopt such a new constitutional class.  But, I think it is well worth the read:

[6][7] ¶ 31 To qualify as a suspect class for purposes of an equal protection analysis, the class must have suffered a history of discrimination, have as the characteristic defining the class an obvious, immutable trait that frequently bears no relation to ability to perform or contribute to society, and show that it is a minority or politically powerless class. Hanson, 83 Wash.2d at 199, 517 P.2d 599; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.1990). Race, alienage, and national origin are examples of suspect classifications. City of Cleburne, 473 U.S. at 440. Suspect classifications require heightened scrutiny because the defining characteristic of the class is “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy–a view that those in the burdened class are not as worthy or deserving as others.” Id. There is no dispute that gay and lesbian persons have been discriminated against in the past.

*8 ¶ 32 The parties dispute whether homosexuality is immutable. The State relies on the decision in High Tech Gays that homosexuality is behavioral, and thus not immutable. The plaintiffs counter that the Ninth Circuit has since “corrected” High Tech Gays and held that gay and lesbian persons constitute a suspect class. They rely on Hernandez-Montiel v. Immigration & Naturalization Serv., 225 F.3d 1084 (9th Cir.2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005), where the court determined that asylum should be granted to an immigration applicant, reasoning among other things that as a gay man with a female sexual identity the applicant had a well-grounded fear of persecution as a member of a particular social group. The court concluded the applicant was a member of a particular social group because “[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Id. at 1093. This conclusion was drawn from other immigration cases and secondary authority.

¶ 33 Notwithstanding Hernandez-Montiel, the Ninth Circuit has since referenced High Tech Gays for its holding that gay and lesbian persons do not constitute a suspect class. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir.2003) (citing High Tech Gays ).

¶ 34 The plaintiffs do not cite other authority or any secondary authority or studies in support of the conclusion that homosexuality is an immutable characteristic. They focus instead on the lack of any relation between homosexuality and ability to perform or contribute to society. But plaintiffs must make a showing of immutability, and they have not done so in this case. [FN6]

¶ 35 Finally, with regard to the ability to obtain redress through the legislative process (the political powerless prong), several state statutes and municipal codes provide protection against discrimination based on sexual orientation and also provide economic benefit for same sex couples. [FN7] Recently, the legislature amended the Washington State Law Against Discrimination to prohibit discrimination on the basis of sexual orientation. Engrossed Substitute H.B. 2661, 59th Leg., Reg. Sess. (Wash.2006). In addition, the Intervenors point to evidence that a number of openly gay candidates were elected to national, state, and local offices in 2004.

¶ 36 The enactment of provisions providing increased protections to gay and lesbian individuals in Washington shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power. Indeed, the recent passage of the amendments to chapter 49.60 RCW is particularly significant given that, as the plaintiffs point out, the legislature had previously declined on numerous occasions to add sexual orientation to the laws against discrimination. We conclude that plaintiffs have not established that they satisfy the third prong of the suspect classification test.

*9 ¶ 37 Our conclusion here, that plaintiffs have not established that they are members of a suspect class, accords with the decisions of the overwhelming majority of courts, which find that gay and lesbian persons do not constitute a suspect class. See Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 818, 818 n. 4 (11th Cir.2004), cert. denied, 543 U.S. 1081, 125 S.Ct. 869, 160 L.Ed.2d 825 (2005) (concluding that gay and lesbian persons are not a suspect class and citing cases from the 4th, 5th, 6th, 7th, 9th, and 10th Circuits that have reached the same conclusion). The Second and Eighth Circuits have reached the same conclusion. Able v. United States, 155 F.3d 628, 632 (2d Cir.1998); Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir.1996). The Court of Appeals held in Singer, 11 Wash.App. 247, 522 P.2d 1187, that gay and lesbian persons do not constitute a suspect class. And even two state courts deciding that same-sex couples have a right to a civil union or marriage did not find a suspect class. Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999) (under the state constitution’s common benefits clause, plaintiffs seeking same-sex marriage are entitled to benefits and obligations like those accompanying marriage); Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003) (denial of civil marriage to same-sex couples violates state equal protection principles). And, while the plaintiffs cite cases they say hold that gay and lesbian persons constitute a suspect class, most do not support the proposition or are otherwise distinguishable. In Tanner v. Oregon Health Sciences University, 157 Or.App. 502, 971 P.2d 435 (1998), the court applied an independent analysis under Oregon’s privileges and,immunities clause and concluded that gay and lesbian persons constitute a suspect class. The analysis bears little resemblance to the analysis that applies under the equal protection clause. They cite Li v. State of Oregon, No. 0403-03057 (Multnomah County Circuit Ct.2004). But this trial court decision was reversed by the Oregon Supreme Court. Li v. State, 338 Or. 376, 110 P.3d 91 (2005). Children’s Hosp. & Med. Ctr. v. Bonta, 97 Cal.App.4th 740, 769, 118 Cal.Rptr.2d 629 (2002) does not concern any issue involving gay and lesbian persons, and says only in passing, without authority, that the issue before it did not relate to a suspect class “such as race or sexual orientation.” Baehr, 74 Haw. 530, 852 P.2d 44, has a lead opinion signed by two justices who concluded that gay and lesbian persons constitute a sex-based suspect class, a concurring opinion of one justice who concluded that a fact question existed as to whether homosexuality is biologically driven and thus a sex-based class, and a two-justice dissent that disagreed. Before the issue was resolved, the voters in Hawai’i passed a constitutional amendment leaving it to the state legislature to decide whether same-sex marriage would be allowed. [FN8] Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super.Ct. Feb. 27, 1998) is a trial court decision finding that denial of marriage to same-sex couples violated the Alaska State Constitution. The court engaged in a fundamental rights analysis but said in dicta that it would also find that gay and lesbian persons constitute a suspect class. The court did not engage in any analysis or cite any authority regarding suspect classification, however. Nine months after the decision was filed, the voters in Alaska passed a constitutional amendment defining marriage as opposite-sex marriage.

*10 ¶ 38 The plaintiffs also suggest that Miguel v. Guess, 112 Wash.App. 536, 51 P.3d 89 (2002), Romer, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855, and Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) indicate a trend toward heightened scrutiny where gay and lesbian persons are concerned. Miguel and Romer are based on another constitutional principle, however. In Romer, the Court invalidated on equal protection grounds Colorado’s constitutional Amendment 2, which prohibited all legislative, executive, or judicial action designed to protect gay and lesbian persons from discrimination. The Court noted that “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631. The Court said that Amendment 2 “fails, indeed defies” this inquiry. Id. at 632. The court noted that central to equal protection is the principle that “government and each of its parts remain open … to all who seek its assistance,” and “[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection in the most literal sense.” Id. at 633. The Court found that there was no legitimate government purpose of Amendment 2 and held the amendment did not satisfy rational relation review.

¶ 39 Similarly, in Miguel, where the plaintiff claimed her civil rights were violated as a result of discrimination based on being a lesbian, the court found that a discriminatory classification based on prejudice or bias is not rationally related to a legitimate governmental purpose as a matter of law. See also Cleburne Living Ctr., 473 U.S. at 448 (noting that while private biases may be outside the reach the law, the law cannot give them effect). Both Miguel and Romer rest on the principle that equal protection is denied where the law’s purpose is discrimination and it has no legitimate government purpose. Neither case supports the proposition that gay and lesbian persons constitute a suspect class. Indeed, as plaintiffs recognize, neither case addressed suspect classifications; the court in Miguel expressly declined to decide whether gay and lesbian persons constitute a suspect class. Miguel, 112 Wash.App. at 552 n. 3, 51 P.3d 89.

¶ 40 In Lawrence, the Court held that Texas’s sodomy law violated equal protection under a rational basis analysis, thus overruling its decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). Lawrence is widely viewed as reflecting changing societal attitudes toward gay and lesbian persons. The Court emphasized “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Lawrence, 539 U.S. at 572. However, the Court did not address suspect classification and invalidated the challenged law on the basis that it did not satisfy rational basis review, a standard that would not apply if the court had found an inherently suspect class.

*11 ¶ 41 In light of the lack of a sufficient showing of immutability and the overwhelming authority finding that gay and lesbian persons are not a suspect class for purposes of the equal protection clause, we decline to conclude that gay and lesbian persons constitute an inherently suspect class for purposes of article I, section 12.

The other critical area of discussion, one which the California supreme court essentially ignored (at least the majority–the dissent recognized the legitimate separation of powers) is the proper role of the judiciary in a constitutional system based on separation of powers and checks and balances.  The court noted:

¶ 2 The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer “yes,” and we therefore reverse the trial courts.

¶ 3 In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.

¶ 4 It is important to note that the court’s role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be. United States Supreme Court Justice John Paul Stevens talked about the court’s role when he described several noteworthy opinions he had written or joined while “convinced that the law compelled a result that [he] would have opposed if [he] were a legislator.” John Paul Stevens, United States Supreme Court Justice, Judicial Predilections, Address to the Clark County Bar Association, Las Vegas, Nev. 2 (Aug. 18, 2005). As Justice Stevens explained, a judge’s understanding of the law is a separate and distinct matter from his or her personal views about sound policy. Id. at 17.

¶ 5 A judge’s role when deciding a case, including the present one, is to measure the challenged law against the constitution and the cases that have applied the constitution. Personal views must not interfere with the judge’s responsibility to decide cases as a judge and not as a legislator. This, after all, is one of the three legs supporting the rule of law. Here, the solid body of constitutional law disfavors the conclusion that there is a right to marry a person of the same sex. It may be a measure of this fact that Justice Fairhurst’s dissent is replete with citation to dissenting and concurring opinions, and that, in the end, it cites very little case law that, without being overstated, supports its conclusions.

¶ 6 Perhaps because of the nature of the issue in this case and the strong feelings it brings to the front, some members of the court have uncharacteristically been led to depart significantly from the court’s limited role when deciding constitutional challenges. For example, Justice Fairhurst’s dissent declines to apply settled principles for reviewing the legislature’s acts and instead decides for itself what the public policy of this state should be. Justice Bridge’s dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it. [FN1] Justice J.M. Johnson’s concurrence, like Justice Fairhurst’s dissent, also ignores the proper standards for reviewing legislation. And readers unfamiliar with appellate court review may not realize the extent to which this concurrence departs from customary procedures because, among other things, it merely repeats the result and much of the reasoning of the court’s decision on most issues, thus adding unnecessarily to the length of the opinions.

I realize that California’s law is ultimately what the supreme court says that it is; however, in this case, for the very reasons expressed by the dissent in the California opinion as well as the Washington Supreme Court majority, the California supreme court overstepped its bounds.  It created a new fundamental right, genderless marriage, and a new suspect class, sexual orientation, when none had existed prior to the Ides of May, 2008.

My point in this post is to express that there is substantial legal authority for defending traditional man/woman marriage.  Actually, it is the majority legal analysis in the country today.  California is in an extreme minority legal position.  Only Massachusetts and Connecticut have concluded genderless marriage is a fundamental constitutional right.  Forty seven other states have not so concluded.  And, many of the remaining states have constitutional amendments in place, similar to what California contemplates tomorrow.

Like the Washington Supreme Court, I believe the more sound legal position is that if there is to be a wholesale redefinition of marriage in any state, it needs to come from a majority of its citizens–not four or five supreme court justices.  This was the dissent’s major argument in the California case.  Interestingly, it appeared most of the justices in the California decision might have agreed with the ultimate conclusion; however, the dissent rested on the separation of powers concept that the law, if redefined, should only be done by the people.

The California Constitution does not guarantee genderless marriage.  The California supreme court created that idea out of whole cloth.  Cloth, that did not exist in California constitutional jurisprudence before the Ides of May, 2008.  If the cloth is in fact to be made, it should be woven from within the fabric of California’s society as a whole, represented by the majority of its voters–not four members of its supreme court.  This is not a debate about civil rights, equal protection or fundamental rights.  In the final analysis it is really a debate about societal acceptance.

So, what will happen?  Do our lesbian/gay sisters and brothers lose all their rights?  Do they revert to second class citizens, as some ads suggest?  You’ve probably seen the television ads portraying Proposition 8 as the same as denying civil rights to our African American sisters and brothers prior to the Civil Rights Act and Civil Rights Movement of the 40′s 50′s and 60′s.  As best I can tell none of this is true.  Rather, what will happen on November 5, 2008, should Proposition 8 prevail at the polls with a majority vote of California’s residents follows below the jump:

All our lesbian/gay sisters and brothers will:

Still have all their First Amendment protections.  They will still have their freedom of speech, and the freedom to exercise their religious beliefs as they see fit.

Still have the right to keep and bear arms.

Still not be forced to quarter soldiers in any of their homes.

Be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Shall not be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.

None shall be subject for the same offence to be twice put in jeopardy of life or limb; nor shall any be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, all accused shall still enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.

They will still have the right to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The right of trial by jury shall be preserved, even if Proposition 8 passes by a popular vote of the people.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, even if Proposition 8 is successful.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, again, even if Proposition 8 is successful.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, will still be reserved to the States respectively, or to the people–even if Proposition 8 passes.

Everyone will still have the right to vote, and express their political opinions, just as several are doing this election season.

Specifically in California, all of our lesbian/gay sisters and brothers who love and cherish each other can, and should register as domestic partners.  And, as registered domestic partners they will enjoy all the rights, privileges, and benefits California law bestows on men and women who are married:

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

They can continue enjoying the sexual relationships they desire.  They can bequeath and devise real and personal property to any person they chose, including their domestic partner.  They may execute powers of attorney, health care directives, wills and trusts just the same as men and women who are married.  They may inherit under any testamentary document.  They may visit each other in hospital rooms when one or the other is sick.

In short, Proposition 8, will not take away any substantive right that the law can bestow on them.  The only thing that they cannot do, is appropriate the institution of marriage for a political agenda, which is as it should be.  Marriage, predates California.  It predates the United States.  Marriage is ordained of God, has been, is, and will continue to be defined both by God and by the vast majority of the entire world as an institution between a man and a woman.

Californians spoke loudly and clearly on this subject eight years ago.  Any redefinition (however foolish the idea) is something that can only legitimately be done either by the legislature or the people–as California’s constitution allows.  It is and was an abuse of judicial power for four supreme court justices on California’s supreme court to re-define marriage in direct contravention of the vast majority of California’s voters.  That judicial activist decision made the majority of California voters second class citizens.  It took away our rights to make our will known at the ballot box.  It is time Californians restored marriage’s definition.  It is time Californians took back that which is the provice of the people to legitmately decide–the secular meaning and definition of marriage in California.

In response to having lawn signs stolen on a regular basis in our area, we decided to display our position on Prop 8 with a large banner.

This afternoon a couple of women pulled up in front of our home and started painting on the windows of their car.  I guess they disagreed with us.

As they were painting these messages, my husband came out and asked them if they would like to have a conversation.  The “conversation” consisted of them calling us bigots, promoters of hate & prejudice, parents who didn’t protect their children and un-Christian (this last comment causing my 11 year old son to cry because he IS a Christian and is so very proud of it!)  My husband and children tried to engage in conversation to share our concerns and point of view and were met with increased intensity and anger.  Their entire message was that we were closed-minded, motivated by hate and prejudice.  In the end, we left them to their project…knowing that sharing and trying to understand one another’s point of view was NOT something they were interested in.

Here’s what we were left with in front of our home.  By the way…we live across the street from a kindergarten playground…what a nice thing the kids will be able to see at recess and as they walk to and from home.

So who is this Catholic priest from Fresno who stood up and spoke out against Proposition 8, putting his career on the line? As a gay man who finds the church’s views on homosexuality so objectionable, why has he been a priest for more than 20 years and subjected himself to such moral conflict?

Yes, why indeed?   Is it possible that now as a “gay” priest who has come out (conveniently during an incredibly contentious political and moral debate on traditional marriage) that the world which seeks only after its own, now seeks after him as well?

Farrow agreed to meet me for lunch in the middle of a schedule that’s gotten very busy since he became persona non grata to his employer. He’s been asked to appear all over the state for rallies against Prop. 8, which would amend the California Constitution to say marriage can only be between a man and a woman.

Persona non grata?  So this is the Catholic Church’s fault?  The gay priest who lies to the church for decades, now publicly denounces official church teaching is somehow surprised when the church deigns to discipline him for apostasy?

Father Farrow, who was suspended by his bishop two weeks ago, strolled into the lobby of the Kyoto Grand Hotel in downtown Los Angeles wearing the collar.

“I’m still a priest,” he said over lunch, though he fully expected to be disciplined for speaking to his congregation about Prop. 8 and wouldn’t be surprised if he’s ultimately fired.

For the moment, he’s staying with friends in Los Angeles. Farrow, 50, doesn’t know what he’ll do after the election. He was suspended without pay and said his medical benefits run out at the end of the month.

OK.  So how is the church out of bounds here?  Why is the church to blame for this priest’s choices and the unavoidable and very predictable consequences?  The Church has no right to discipline those of its own clergy who turn their back on its teachings and openly criticize its official doctrine?

Wasn’t it a suffocating compromise? I asked. He had given himself over to a church that has, despite moderating its views in recent decades, condemned homosexuality and marginalized gays, even though in Farrow’s opinion a sizable percentage of priests are gay. Farrow conceded that he has considered church teachings “monstrous,” especially given the history of violence and suicide victimizing gays. But he said he has always believed in the church, if not in the men who led it. It’s like loving a family member despite a falling out, or loving your country even as you doubt its leaders.

A suffocating compromise?  Suffocating for whom?   Who chose to openly, affirmatively and shamelessly lie to obtain a pastoral position of trust and power?  How does he know a sizable number of priests are gay?  Or, is this just a convenient conclusion because it’s very popular right now to tow the “gay rights” political banner?  And, heaven forbid, if anyone dares express an opposing religious or political opinion, they are branded as bigots and haters.  (Don’t think so?  Wait and read some of the comments that will show up here, and inevitably label me either bigoted, or hateful, or the like–they’ve certainly shown up on other posts).

The church’s teachings on homosexuality are monstrous?  I don’t get that from a quick review of those teachings.  To the contrary, it is clear the Catholic Church like many teach compassion and love for the sinner, while calling out the sin.  The idea that the Catholic Church, or any church, LDS, Protestant, or otherwise is somehow responsible for violence against and suicide by gays is preposterous.  As tragic as those circumstances certainly are:  No church is to blame for these actions and horrible consequences.  To suggest otherwise is simply a lie.

Farrow then had his epiphany when he was asked by a Prop. 8 supporter in Fresno to speak up in favor of the measure. He knew he couldn’t and that in fact he had to do just the opposite.

“I am morally compelled to vote no on Proposition 8,” he told his congregation, saying he had to break “a numbing silence” about church prejudice against homosexuals.

An epiphany?   How about jumping on the political and culturally popular bandwagon of gay rights = civil rights = marriage for everyone?  Morally compelled to vote no on 8 because the church is prejudiced against homosexuals?  It is equally prejudiced against those engaging in other sinful acts, adultery, fornication, abortion, murder?   When does affirmative sinful conduct cross into the fantasy world of simple prejudice? Suggesting the church, any church is prejudiced against homosexuals is simply a cop out and a way to avoid personal responsibility.  Most traditional churches, the LDS included, are in the morality business.  It is their job to look after the spiritual welfare of their flocks and congregants–regardless of its popularity.  It is not their job to acquiesce in the world’s adulation and tolerance of every different and politically popular lifestyle that happens to come along.

To Farrow, condemning gay and lesbian marriage is as offensive as the condemnations of interracial marriage not too many decades ago.

This is the most absurd and illogical comparison ever made,  (One that continues to be made everyday to justify genderless marriage).  There are absolutely no similarities in the plight of the “gay rights” movement of the last several years, and the Black civil rights movement of the 50′s and 60′s.  There is no similarity or comparison between anti miscegenation laws of decades past, and the definition of marriage, since time began.

No self identified homosexual has ever faced the legal-both defacto and dejure-discrimination that Blacks faced from the time their ancestors were hauled over to U.S. shores aboard slave ships, up through the the Civil War, reconstruction, Jim Crow, the real Civil Right’s movement, and even up through today.  The two movements are not now, have never been, nor will they ever be in the future the same–or even remotely similar.  To suggest otherwise is untrue.

Gay or genderless marriage cannot be justified, legally or morally on the back of the anti miscegenation laws of years pasts  Those laws were a perpetuation of the white supremacy movement post Civil War.  They were laws that criminalized marriage, mostly between white races and any other–rather than just the union of nonwhite races.  Often those laws were felonies, punishable by prison sentences.  Those laws never, ever, had anything to do with marriage or its definition (which is the only question at issue in today’s debate and in Proposition 8).  The white supremacy movement hijacked marriage for its own purpose–perpetuating white supremacy.  It was not interested in marriage per se.  Rather it used marriage to further their political causes.

Likewise, today’s “gay rights” moment has appropriated marriage for its own political agenda.  Courts were right to strike down anti-miscegenation laws.  They properly used the 14th amendment, equal protection and due process arguments to strike down those laws based on a constitutionally protected class, i.e. race.  They were not re-defining marriage.  Had the cases giving rise to striking down these laws been based on homosexual couples, the out comes would have been much different.

It is laughable to compare today’s “gay rights” agenda to hijack marriage and the anti miscegenation laws.  They were not the same then.  They are not the same now.  They will never be the same in the future.  This debate is about the wholesale redefinintion of marraige for all of society by an extremly vocal and small minority.  This is not a debate about civil rights, or any other kind of rights.  Homosexual couples as of the date of the supreme court’s wrongly decided opinion enjoyed all the rights California law could afford married couples.  As I have said many times before, and will continue to say in the future–this debate is about societal acceptance–nothing more and nothing less.  Dressing it up civil rights lipstick . . . well, you can get the gist of the rest.

This first example stems from a member of the Church here on the Central Coast.  He has placed one of the large wooden Yes on 8 signs on his private property at his home.  Last week, he received the hate mail reproduced below.  I have redacted the name and address; but the remainder is posted in full.

Simply amazing.  And, it has apparently escalated in at least one case to physical violence.  The Proposition 8 Website has an article outlining several instances of trespassing and property damage, all over California, including this most disturbing event of actual physical injury:

As if violently attacking a Yes on 8 volunteer in Modesto on Sunday were not bad enough, No on 8 forces have been intimidating Yes on 8 volunteers and stealing yard signs.

The individual violently attacked was:

Prop. 8 supporter, Jose Nunez, 37, was brutally assaulted while waiting to distribute yard signs to other supporters of the initiative after church services at the St. Stanislaus Parish in Modesto.

Again,  just unbelievable.  Several individuals have forwarded additional photos of defacement, which I will continue posting:

If you live in California, and have photos of similar instances of intolerance, I will post them online.  You can send them to me at guy dot murray at gmail dot com.

The gay rights community is pushing back hard against the notion that same sex marriage will not affect anyone else.  They are particularly pushing back hard on the idea that school children will be affected.  We know this is not at all true.  See my post on the California first grade class which was transported to a lesbian wedding, presumably at taxpayer expense to observe a “teachable moment” where the poster boy for gay rights, Gavin Newsom presided over the wedding.  Below is a video of what has happened in MA after they had legalized genderless or gay marriage.

Here is a link chronicling the saga of the Parker family as their parental and religious rights have been trampled by the state as a direct result of mandated gay marriage by the MA supreme court.  Think it won’t happen here in California?  Think again.  The status of the law now in California is that “sexual orientation” whatever that means, is now a constitutionally protected class.  And, gay marriage, or as I like to call it “genderless marriage” is now a fundamental right in California.  Armed with these newly judically created constitutional rights, it is not only foreseeable, but certain to happen here–give it time.  MA is a wake up call for all parents, all families, and all those who still believe religious liberties deserve greater protection than so called “gay rights.”

The latest videos in support of Proposition 8 have been released.  I have posted them below the jump:

Will Same Sex Marriage Hurt Others?

Sick And Tired Of Intolerance?

Are Others Supporting Proposition 8

Will Courts Overturn Again?

Didn’t We Already Vote On This?

Don’t Others Deserve The Same Happiness?

Will Exsiting Rights Disappear?

Below is the most recent email update from the Yes on Proposition 8 Campaign, outlining the misleading and untrue statements about how genderless marriage advocates are claiming there will be no impact to public school children.  The facts strongly suggest otherwise, including my last post of the San Francisco first grade class which recently attended a lesbian wedding.

ProtectMarriage.com – Yes on Proposition 8

Dear Friend,

The top issue that has emerged in the Proposition 8 campaign is whether same-sex marriage will be taught in California public schools if the initiative is not enacted. Opponents of Proposition 8 are spending millions of dollars on television commercials telling voters that the Yes on 8 campaign’s claim that gay marriage will be taught in public schools is a lie. Yet a review of public records filed with the First District Court of Appeal in Boston shows these same organizations who claim our statement is a lie fought to make it true in Massachusetts.  Specifically, they fought to ensure that gay marriage be taught in Massachusetts public schools, even over the objection of parents who sought an “opt out” for their children. Gay marriage was legalized by Massachusetts courts in 2003.

Further, their assurance that parents can always “opt-out” of such instruction when it is taught is belied by the fact that in Massachusetts, they argued successfully that Massachusetts’ parental opt-out provision should not be permitted.

“These damning public records show that it is in fact the organizations leading and financing the No on 8 campaign who are lying to California voters,” said Yes on 8 campaign manager Frank Schubert. “On one coast of the country they tell judges that gay marriage should be taught to children in school at the youngest possible age. But, on the opposite coast, here in California, they have the audacity to tell voters that gay marriage has nothing to do with public schools.”

Lying…who’s really lying?

The Yes on 8 campaign has been airing television and radio commercials factually presenting what happened in Massachusetts where second graders were taught in class about gay marriage using the book, “King and King.” This book is about a prince who married another prince, and includes an illustrated scene of the two men kissing. In response, the No on 8 campaign has purchased at least $1.25 million in television time to run an ad that says, “They’re using lies to persuade you…[Prop. 8] will not affect teaching in schools. Another lie.” (Source: No on Prop. 8 Ad available at www.noonprop8.com)

In the greatest irony, of course, just two days after the No on 8 “Lies” television commercial began airing, a first grade public school class in San Francisco was taken on a field trip to a lesbian wedding at City Hall, officiated by Mayor Gavin Newsom. School officials said they wished to provide their five and six year old students a “teachable moment.”

It should also be noted that the day after the first Yes on 8 ads began running, the Los Angeles Times reported that “Newsom called the Yes on 8 ad ‘classic distraction’ and misleading.”  Ten days later, he officiated at the above-mentioned and now infamous field trip.

“Not only do the organizations leading the No on 8 campaign want gay marriage, under the guise of ‘diversity,’  taught in public schools, they believe it is important to teach it at the earliest possible age,” Schubert said. Massachusetts begins its “diversity education” to five year old children in kindergarten.

According to legal records on file with the United States Court of Appeals for the First Circuit in Boston, Massachusetts in the case Parker v. Hurley (514 F.3d 87 (1st Cir.2008)), some of the very organizations who are funding and driving the No on 8 campaign have argued vociferously that gay marriage should be taught in the public schools under the guise of “diversity,” and any attempt to prohibit such instruction – or to permit parents to opt their children out of it – must be stopped.

The following are statements filed in amicus curiae briefs in Parker v. Hurley. The statements show how organizations leading the No on 8 campaign are lying to California voters when they say gay marriage will not be taught in California public schools.

From the Anti-Defamation League (ADL) Amicus Curiae Brief:

“In the Commonwealth of Massachusetts, where the right of same-sex couples to marry is protected under the state constitution, it is particularly important to teach children about families with gay parents.” [p 5]

“Diversity education is most effective when it begins during the students’ formative years. The earlier diversity education occurs, the more likely it is that students will be able to educate their peers, thereby compounding the benefits of this instruction.” [p 3]

(Note: The ADL is a leading member of the No on 8 campaign, and publicly announced they had joined the campaign opposing Proposition 8 on September 9, 2008.)

From the Human Rights Campaign Amicus Curiae Brief:

“There is no constitutional principle grounded in either the First Amendment’s free exercise clause or the right to direct the upbringing of one’s children, which requires defendants to either remove the books now in issue – or to treat them as suspect by imposing an opt-out system.” [pp1-2]

“In short, there can be no serious dispute that the books in issue are both age-appropriate and reflect the growing diversity of American families.” [p 9]

“Lexington’s selection of the [three] books…for inclusion in its curriculum is firmly rooted in the long-recognized tradition of public schools as a place for disseminating the knowledge and information that helps to foster understanding between diverse groups and individuals for the overall benefit of society.” [p 13]

(Note: The Human Rights Campaign has organized one of the largest recipient committees to oppose Proposition 8. The committee, Human Rights Campaign CA Marriage PAC (ID# 1307246) has received more than $2.2 million in contributions (as of 10/8/08), including over $100,000 from the Human Rights Campaign itself in non-monetary contributions. The committee has funneled over $2 million of its funds to No on 8, Equality for All (ID# 1259396), the main No on Proposition 8 campaign committee.)

From the ACLU Amicus Curiae Brief:

“Specifically, the parents in this case do not have a constitutional right to override the professional pedagogical judgment of the school with respect to the inclusion within the curriculum of the age-appropriate children’s book…King and King.” [p 9]

“This court has astutely recognized that a broad right of a parent to opt a child out of a lesson would fatally compromise the ability of a school to provide a meaningful education, a conclusion that holds true regardless of the age of the child or the nature of the belief.” [p 18]

“First, a broad right of a parent to opt a child out of a lesson would subject a school to a staggering administrative burden…Second, in contravention of the axiom that ‘the classroom is peculiarly the ‘marketplace of ideas’’ [citations], a broad right of a parent to opt a child out of a lesson would chill discussion in the classroom…Third, the coming and goings of those children who have been opted out of lessons would be highly disruptive to the learning environment. Moreover, such comings and goings would fatally undermine the lessons that schools teach the other students.” [pp 22-23]

(Note: The Northern California Chapter of the ACLU has also formed a Proposition 8 opposition committee: No on Prop 8, Campaign for Marriage Equality, a project of the ACLU of Northern California (ID# 1308178). This committee has collected $1.6 million in contributions (as of 10/8/08), including more than $70,000 from the ACLU of northern California, as well as $8,000 from the ACLU Foundation. This committee has contributed $1,250,000 to No on 8, Equality for All (ID# 1259396), the main No on Proposition 8 campaign committee.)

These are the facts. This is the truth about the calculated efforts to deliver gay marriage into our public school classrooms, against the wishes of the people of our state. Voters may differ about how they feel about gay marriage, but there is no disputing that the organizations funding and leading the No on Proposition 8 campaign have already revealed, in their own words, their desire to impose this subject on children in the public schools – ‘whether you like it or not.’

To make sure Californians know the truth, we need you to do three things right now:

1. Forward this email to your friends and family right now, and ask them to forward it to their friends. Every California voter needs to know about this.

2. Watch the truthful ads the No on 8 campaign doesn’t want you to see, and donate to keep them on the air.

3. Please volunteer today, and we’ll put you out in the field talking to voters directly — as thousands are already doing.

Thank you for all that you do. Please spread the word and make sure your neighbors know the truth before they vote!

Sincerely,

Frank Schubert
Campaign Manager
ProtectMarriage.com – Yes on 8

www.protectmarriage.com

Mayor Gavin Newsom’s bombastic in your face proclamation on the family, “whether you like it or not” has come home to roost in the California genderless marriage debate.   And, at the center is a group of first graders, used as pawns in that debate.

The San Francisco Chronicle reports in an article headlined Class surprises lesbian teacher on wedding day:

A group of San Francisco first-graders took an unusual field trip to City Hall on Friday to toss rose petals on their just-married lesbian teacher – putting the public school children at the center of a fierce election battle over the fate of same-sex marriage.

First Graders?  First Graders?  Wow!  Tossing rose pedals on their just married lesbian teacher?  How many parents signed off on that field trip?   Liz Hafalia’s photos from the Chronicle confirm this most incredible story:

If anyone needed any proof that children, the youngest of school children will be exposed to gay marriage in ways that many parents will find objectionable, here it is in living color.  If you’re so inclined you can even watch the video here.

According to the Chronicle:

The 18 Creative Arts Charter School students took a Muni bus and walked a block at noon to toss rose petals and blow bubbles on their just-married teacher Erin Carder and her wife Kerri McCoy, giggling and squealing as they mobbed their teacher with hugs.  Mayor Gavin Newsom, a friend of a friend, officiated.

What a surprise, Mayor Gav, again at the forefront.  Remember him?  He’s the one who on his own initiative, and even before the California Supreme Court mandated genderless marriage by judicial fiat, and in direct contravention of the popular will of California’s voters started issuing marriage licenses for genderless marriages several years ago.  Of course he was eventually rebuked by the courts–still his actions were instructive, and even prophetic way back when.

According to the article, a parent supposedly came up with the idea:

A parent came up with the idea for the field trip – a surprise for the teacher on her wedding day.

“She’s such a dedicated teacher,” said the school’s interim director Liz Jaroslow.

A dedicated teacher?  That’s the basis for hauling first graders out to gay weddings, in the midst of a heated political campaign?

The other justification?  Why, it’s a teachable moment–of course:

But there was a question of justifying the field trip academically. Jaroflow decided she could.

“It really is what we call a teachable moment,” Jaroflow said, noting the historic significance of same-sex marriage and related civil rights issues. “I think I’m well within the parameters.”

Yeah, I’d say its a teachable moment, all right.  It teaches the voters of California that the fears and concerns expressed in the Proposition 8 ads that this decision will directly impact the youngest of school children, are based in fact, not fear.  Remember that California Education Code section 51890 about the requirement to teach about marriage to all school aged children?  Well, here you go folks.

Even the San Francisco Chronicle conceeded that this stunt provided crediblity to the Proposition 8 campaign’s claims:

Nonetheless, the excursion offers Proposition 8 proponents fresh ammunition for their efforts to outlaw gay marriage in California, offering a real-life incident that echoes their recent television and radio ads.

“It’s just utterly unreasonable that a public school field trip would be to a same-sex wedding,” said Chip White, press secretary for the Yes on 8 campaign. “This is overt indoctrination of children who are too young to have an understanding of its purpose.”

The trip illustrates the message promoted by the campaign in recent days, namely that unless Prop. 8 passes on Nov. 4, children will learn about same-sex marriage in school.

“It shows that not only can it happen, but it has already happened,” White said.

Already happened indeed.  Whether you like it or not, Californians–it’s here to stay, unless we take back via the ballot box that which the California Supreme Court took away in the stroke of a pen:  Traditional Marriage between a man and a woman.

One of the most significant cases outlining the state’s interests was Hernandez v Robles 855 N.E.2d 1 (2006), where the New York Supreme Court soundly rejected genderless marriage in New York.  I look to New York, because their supreme court is well established and well respected–and frankly because the California State Supreme Court got it wrong.

The Hernandez Court began by listing some of the 316 benefits of marriage identified in that particular case:

It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.

In order to satisfy constitutional standards the state must have sufficient legal and societal reasons to make certain distinctions in the law.  The court put it this way:

The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite- sex couples, but not same-sex couples. The question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course the Legislature may (subject to the effect of the federal Defense of Marriage Act [Pub. L. 104–199, 110 U.S. Stat. 2419] ) extend marriage or some or all of its benefits to same-sex couples. We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

The court concluded there were at least two rational grounds for New York, and presumably any state, to support certain limitations on marriage, i.e., that it should be limited to the man/woman relationship, rather than a wholesale re-definition of marriage to a genderless institution.

The first reason enunciated by the court centered on the welfare of children:

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.

What the proponents of genderless marriage emphasize are perceived rights of adults, and they completely ignore the rights and the welfare of children.  This is a critical point, the court makes.  It is in fact very important to promote stability and to avoid instability in man/woman relationships.  Why?  Because the laws of Nature, and Nature’s God have decreed that hetrosexual intercourse has a natural tendency to lead to the birth of children.  Homosexual intercourse does not.  And, as the court wryly notes, this fact will likely continue in perpetuity.

Further expanding on this point, the court noted:

The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement in the form of marriage and its attendant benefits to opposite-sex couples who make a solemn, long-term commitment to each other.

It is a fact that all too often hetrosexual relationships are casual or temporary.  Therefore, to create more stability and permanence in these relationships, the state offers marriage as an inducement, with its benefits to promote and encourage solemn–long term commitments to each other.  Why?  For the benefit of the children–not the adults–though undoubtedly the adults too will benefit.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.

No doubt, same-sex couples might adopt or artificially inseminate; but, there is no way they will become pregnant by accident or impulse.  So, what?  Well, as the court notes, this is another reason why marriage’s rationale doesn’t apply equally to same sex couples.

The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

This is an interesting analysis by the court: that opposite sex couples present a greater danger to children in terms of unstable homes, without the benefits of marriage; therefore, it is more reasonable to afford the status of marriage to opposite sex couples, and not those of same-sex couples.  Personally, I think this rationale is probably one of the weakest the court offers of why the legislature could restrict marriage to the man/woman relationship.  But, the court did offer better rationales:

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.

Yes, back to the children, and their rights.  It is better that children grow up with both a mother and a father, where possible.  Children do benefit from having living models in their home both a man and a woman for the parental role models.  It also happens to coincide with what living prophets, seers, and revelators have taught.  I think the court gets it right here.  As a general rule, it is just better for children to grow up with parents of both sexes.  It is, after all what nature appears to have intended as well.

I think the New York Supreme Court’s analysis of this very same question is a better legal result, better reasoned, and preserves the traditional definition and roles of men and women in marriage.  The New York Supreme Court also recognized one of the most important limitations on its own power, that the California Supreme Court failed either to recognize or accept:  Any change to the definintion of marriage, should come from the legislature–not the bench.   And, in California, that would include the direct voice of the people:

Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection clauses, and that any expansion of the traditional definition of marriage should come from the Legislature.

Such a drastic and dramatic redefinition of marriage and of society is better dealt with at the legislative level though the people’s representatives–not unelected and unnacountable justices, legislation from the bench.

In short, there are two overriding interests (with several subsets of those two major interests) the court outlined the state has in preserving marriage between a man and a woman:

1.  Traditional man/woman marriage promotes stability in hetrosexual relationships, which inures to the benefit of the children;

2.  Hetrosexual intercourse has a natural tendency to lead to the birth of children;

3.  Homosexual intercourse does not;

4.  Therefore, it makes more sense to afford marriage status to hetrosexual couples, not homosexual couples;

5.  Other things being equal, it is better for children to grow up with a man role model as a father, and a woman role model as a mother.

There are likely other interests the state might have.  But, these are the two major interests (and their subsets) outlined by New York’s Supreme Court that the state may assert in preserving marriage between men and women.  They are good, sound, interests, supported with sound, common sense, legal reasoning.

Finally, it is important to point out, that all the benefits of marriage, outlined by the New York Supreme Court were afforded to registered domestic partners in California, long before the State Supreme Court struck down as unconstitutional California’s statutes defining marriage between man and a woman.  There is much hype by the No on 8 folks that Proposition 8 takes away rights.  It does not.  Furthremore, the state and societal interests justify maintaing marriage in California between a man and a woman.