Lets Get the Marriage Debate Right

I guess the California Supreme Court feels it has found a clever way to take the wind out of the gay marriage argument.

In case you missed it, the headlines today tell us that the Cal Supremes ruled for the Christofacists and saved marriage from queers and such. Well, it is true that in California, a gay couple cannot now say they have a marriage…unless they are among the 18,000 who got actual marriage licenses before the San Francisco operation was shut down by court order. However, that does not mean that gay couples do not have “marriage-like” rights. Here is what the court said:

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. …. Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.”

Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles… . Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws. …

We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure. ….

As a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.

So in California we will not call a union between gay or lesbian couples a marriage. But we will be sure that they have all other rights of married people. I have written here before that it is important to grant GLBT couples marriage rights because marriage defines so many legal relationships that to fail to call it a marriage would undoubtedly lead some court to conclude that not all rights were granted and some rights were specifically reserved to “married”couples. I suspect that will happen in California, even though the court went to great pains to make clear that the only thing accomplished by Prop 8 was to deny GLBT partners the right to a relationship that the state will call marriage. They cannot be denied “a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.”

Thus, the GLBT community is not happy about this, and I cannot blame them. Words are important. I think this whole fight is the result of not picking the right words to argue about to start with. The issue should always be civil marriage, not marriage. Some people think there is something particularly religious about the later, and that may be true. In fact, all marriages are civil marriages. Church marriages are civil marriages because the government has agreed to recognize them. A marriage license is a civil document, not a religious one. And not all marriages are religious marriages…like mine, which was accomplished in five minutes before a Justice of the Peace in Arlington, VA. And not all churches are run by Christofacist wackos, and some will recognize GLBT marriages. My brother previously known as Janet was married by an actual preacher in a ceremony that was probably illegal in the state of Virginia, where it was performed. The legal rights that accrue to marriage are conferred by the civil authority, not by the church. The civil authority has no right to deny the right to civil marriage to anyone. Churches have no right to dictate the terms of civil marriages to any civil authority.

That’s the way it is supposed to be.

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