A license conferring human dignity, is it a matter for any government?

Thirty years ago I wrote a column for the now defunct newspaper the Great Western Pacific Coastal Post in which I noted that the marriage contract is the only binding legal contract most Americans will enter into without knowing the terms thereof and which terms can be modified at any time by a state legislature with the approval of the state governor.

At the time I wrote that column, in California Jerry Brown was Governor and the Legislature was dominated by Assembly Majority Leader Willie Brown. At the time, I asked: "Why would any Californian turn the most important contract of their lives over to the whims of the Brown Brothers?"

In a November 2008 post here It's time to privatize marriage! I noted:

To understand the difference between the religious component and the civil component, consider this. A couple could be "married" by the Pope on the steps of the largest Catholic church in the country and the marriage would not be legally valid in any state without a license issued by a government clerk. Yet in many places, a marriage ceremony performed by such a clerk pursuant a license issued by that clerk would be valid anywhere else in this country. The validity of a "marriage" in America is all about a government license and nothing about the beliefs of the couple involved.

It wasn't always this way. Prior to the Civil War, Americans would have been startled at the idea that they would have to get the government’s permission to get married. Our Founding Fathers had no understanding of marriage in that context. Americans must remember that marriage license laws were introduced in America mostly to prevent blacks from marrying whites, in other words to write into law racial discrimination based on beliefs of the sincere American majority.

This week the 9th U.S. Circuit Court of Appeals rendered a decision on Proposition 8. Proposition 8 was an initiative proposition passed in November 2008 which added the following section to the State Constitution:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

The Appellate Court majority pointed out that the words of Proposition 8 doesn't alter any legal elements of a relationship because "under California statutory law, same-sex couples had all the rights of opposite-sex couples."

According to the Appellate Court majority, Proposition 8 "stripped same-sex couples of the ability they previously possessed to obtain from the State...an important right—the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less."

The Appellate Court majority said—using nice words and legal language—that the voters cannot re-institutionalize bigotry using the ballot box. The majority said Proposition 8 "has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

The majority said pursuant to the Fourteenth Amendment to the United States Constitution the State did not have that authority, either through the legislature or the voters.

What can be understood from this is that within the world generally, a legal authorization—normally a license issued by a local government bureaucrat—to use the word "marriage" is required and that license confers a certain level of human dignity upon people.

Proposition 8 was a response to a California Supreme Court decision In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384].

On May 15, 2008, the California Supreme Court ruled in a 4–3 decision that laws directed at gays and lesbians are subject to strict judicial scrutiny and that marriage is a fundamental right under Article 1, Section 7 of the California Constitution, thereby holding unconstitutional the previously existing statutory ban on same-sex marriage embodied in two statutes, one enacted by the Legislature in 1977, and the other through the initiative process in 2000 (Proposition 22). The Court's ruling also established that any law discriminating on the basis of sexual orientation is constitutionally suspect.

Most importantly, according to the ruling the California Constitution gave people in same-sex committed relationships the right to apply the term "marriage" to their relationship.

In November 2008, Proposition 8 was passed by the voters amending the State Constitution basically taking the subject away from the California Supreme Court and taking away from people in same-sex committed relationship the right to apply the term "marriage" to their relationship.

California, of course, already had laws providing for recognition of domestic partnerships and permitting same-sex couples to raise children. So, basically all Proposition 8 did take away from people in same-sex committed relationship the then existing Constitutional right to apply the term "marriage" to their relationship.

In saying that the State could not do that, the U.S. Appellate Court majority this week did not rule to legalize same-sex marriage, though that would be the ruling's effect in California only. The opinion was clear about that. This ruling does not make it easy for the U.S. Supreme Court to overturn or even want to agree to hear an appeal on the case.

The Appellate Court decision plays to the current U.S. Supreme Court majority preference to consider matters of law in the narrowest of ways in order to render a decision. It normally does not want to take a case like this full of unique issues related to one state and use it to render a broad decision applicable to every state in the Union.

On the other hand, the U.S. Supreme Court members might find it difficult to ignore that the granting of rights to a State marriage license prior to Proposition 8 was not via legislation but by the California Supreme Court through In re Marriage Cases overturning both legislation and a statute adopted by initiative, which can be viewed as judicial activism.

Regardless of what the courts do, in my opinion the Appellate Court confirmed my opinion that we should no longer have marriage licenses issued by government.

With that said, we still live in a much larger world full of laws, traditions, customs, and habits. Because of issues of recognition of marital status in other states and countries, Californian's would need a limited law that says something like:

Section 1. Parts 2, 3 and 4 of Division 3 of the Family Code are hereby repealed.

Section 2. Part 1 of Division 3 of the Family Code is hereby repealed and replaced as follows:

PART 1. CERTIFICATE OF MARRIAGE.

Section 320. Any County Clerk of any County upon application of any two persons who are residents of California older than 17 shall issue a certificate of marriage which shall be recognized in other states and countries regarding the determination of the marital status of those two persons.

Section 321. Prior to receiving a certificate of marriage from a County Clerk pursuant to Section 320 hereinabove, the applicants shall either (1) submit a marriage contract consistent with Part 5 of Division 4 of this Code with said County Clerk to be recorded as a public record or (2) register as domestic partners pursuant to Division 2.5 of this Code. A certificate of marriage issued pursuant to Section 320 shall confer no additional rights, privileges, or obligations in California.

Section 322. Applicants for a certificate of marriage shall appear together in person before the county clerk or deputy county clerk to obtain the certificate of marriage.

Section 323. The certificate of marriage which shall be a public record shall show all of the following: (a) the identity of the parties to the marriage, (b) the parties' full given names at birth or by court order and their mailing addresses, (c) the parties' dates of birth, and (d) whether the parties have filed for recording a marriage contract or are registered as domestic partners.

Section 324. Persons who received a marriage license from another jurisdiction outside California or prior to the effect date of this section who received a marriage license in California shall hereafter be entitled to and subject to all the rights and privileges and obligations granted to domestic partners by California law.

Section 325. Nothing herein shall preclude any two persons who hold or are eligible to apply for a certificate of marriage to have a ceremony or other private or public event to solemnize their marriage. Such ceremony or other private or public event shall not replace a certificate of marriage issued by a County Clerk.

Unfortunately, such a law is necessary because government is still embroiled in the personal affairs of people. It is unfortunate because, as our Founding Fathers would recognize, such relationships as marriage aren't necessary nor appropriate subjects for government interference nor should laws exist solely to give a government bureaucrat the ability to confer human dignity on some people and not others.

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Here are the first five paragraphs of what is now known as the Perry v Brown decision:

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relation ships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort." Romer v.  Evans, 517 U.S. 620, 633 (1996).

"Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court." Sweatt v. Painter, 339 U.S . 629,631 (1950). Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation , and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.

Thus, as a result of our “traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in th[is] case[] is unnecessary to [its] disposition." Id. Were we unable, however, to resolve the matter on the basis we do, we would not hesitate to proceed to the broader question—the constitutionality of denying same-sex couples the right to marry.