Friday, March 29, 2013

Confusion in California

This week the Supreme Court heard legal arguments on the federal Defense of Marriage Act and on California's Proposition 8, an attempt by California's citizens to confirm their state's policy of granting legal recognition exclusively to heterosexual marriages. Until the Supreme Court rules, Californians will not know if they will continue to exercise the right to define and delimit the practice of marriage.

How did it come to this?

Marriage has been understood traditionally as a union between a man and a woman. So universal is this traditional understanding that many state statutes regulating marriage include no references to gender. Homosexual rights advocates have seized upon this perceived vagueness in state civil or family codes to make their legal cases for same-sex marriage. In 1977, California state assembly removed this vagueness by amending its civil code to confirm the traditional definition of marriage as “ a personal relation arising out of a civil contract between a man and a woman.”

Same-sex marriage developments in other states moved California to further refine its statutes on marriage. Because California law recognized the legal status of marriages conducted in other states, this opened the door for the establishment of same-sex marriages in California through the back door (no pun intended.). Couples who were parties to a legal same-sex marriage as citizens in another state could relocate to California and demand recognition of their marriages. In addition, California citizens could subvert their state’s regulations by marrying in a state that licensed same-sex unions and returning to California.

California voters attempted to close this loophole in 2000 through Proposition 22, called the Defense of Marriage Act. Passed by a 61-39 percent majority, this initiative amended the statutes in the family code to read that "only marriage between a man and a woman is valid or recognized in California." Homosexual rights advocates filed lawsuits in several different jurisdictions challenging its constitutionality. These cases wound their way through the California state appellate system until they reached the California Supreme Court. The Court consolidated and reviewed six of these cases. In May 2005, the court by a 4-3 majority struck down Proposition 22 and other related statutes that maintained the traditional definition of marriage as violating the California state constitution.

To reinstate the traditional understanding of marriage and the state’s statutes on licensing, a petition drive placed another initiative before the voters. Proposition 8, the California Marriage Protection Act, sought to bypass the state’s Supreme Court ruling by amending the state constitution itself. The petition drive secured twice the number of signatures need to be placed on the ballot. On November 5, 2008, voters passed Proposition 8 by a 52-48 majority. Several same-sex couples filed lawsuits challenging even the validity of amending the state constitution. On May 2009, the California Supreme Court rejected these challenges.

Homosexual rights advocates hit the streets in protest and vowed the bring the issue before the voters again. They intended to wear down voters by attrition and exhaust their political will so that same-sex marriage will become state law. Meanwhile, plaintiffs filed a lawsuit in federal court claiming that the amendment of California’s state constitution violated the United States Constitution. They retained as their attorneys former Bush administration solicitor general Ted Olsen and attorney David Boies. They squared off against each other earlier in the Supreme Court case about the disputed 2000 presidential election results in Florida. Strange bedfellows, indeed (pun intended).

They argued their case before Judge Vaughn Walker. The state government, in violation of their oaths of office, refused to defend the law. Despite controversy about their legal standing in the case, lawyers representing a private advocacy group defended the proposition. On 10 August, 2010, Walker ruled against Proposition 8, declaring that it violated the United States Constitution's "equal protection" clause.

On appeal, the Ninth Circuit Court of Appeals upheld Walker's ruling.

The defenders of Proposition 8 appealed to the US Supreme Court. With controversy again surrounding the legal standing of the lawyers defending Proposition 8, the justices reheard the case.

In a few month's Californians will learn if they still possess the right to decide which social institutions they can define and recognize.

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