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Judicial legerdemain
A story in today’s Los Angeles Times online edition carries the title: “California chief justice says same-sex marriage ruling was one of his toughest.” It’s not surprising considering the fact that it wasn’t based on any law (or more to the point, was contrary to existing precedent and the unambiguous will of the people). It is always difficult to fabricate new rights from thin air with no support in the law. In a 121 page decision filed on Friday, the “moderate Republican” chief justice of the Supreme Court of California wrote that:
Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”
The problem that the chief justice wrestled with stemmed from the fact that California already provides “domestic partnerships” for gay couples replete with all of the rights and privileges that married heterosexual couples enjoy. The only real difference between the two is terminology. In fact, because of California’s Domestic Partnership Act, Proposition 22 merely reserved to traditional marriage the label “marriage.”
Nonetheless, this minimal disparity in terminology was seized upon by the supreme court of California as an occasion for judicial activism. The plaintiffs claimed that the difference in terminology placed a stigma on their relationships, relegating them to the status of “second class citizens.” Domestic partnerships were insufficient for the radical gay activists who demanded that traditional marriage be dispensed with and redefined so as to include their particular sexual perversions.
