The decision is flawed from the very first paragraph. Really. Let me quote it:
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.
You'll note that the decision first notes the California constitution and then the 14th Amendment of the US. Constitution. Lets deal with the first part
Prior to November 4, 2008, the California Constitution guaranteed the right to
marry to opposite-sex couples and same-sex couples alike.
That is actually a false statement. The California constitution as enacted in 1849 is very clear as to what it considers "marriage". The word "marriage" appears exactly twice in the original California constitution:
Sec. 12. No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect.
Sec. 14. All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property.
As anyone who can read will note, Section 14 of the California constitution clearly refers to a "wife" as "her". It does not refer to a wife as a "person" or "persons" or "him". It refers to wife as "her". That is all. Husband is also referenced relative to wife. Husband is never explicitly linked to gender but is implied as male.
Therefore the California constitution as ratified in 1849 defines marriage as having a wife and husband in which the wife is explicitly a female and the husband implicitly a male. Therefore the original California constitution defines marriage as between a male and female.
Therefore for a justice to claim that prior to November of 2008 that any other marriage arrangement was legal or recognized under the California constitution is factually wrong.
Furthermore, for the justice to state that prop 8 took away a "right" that previously existed is simply untrue. The alleged right of same sex persons to marry was interpreted. The California legislature attempted to have a law enacted to add same sex marriage but that was vetoed by the Governator. Thus it is factually incorrect to state that same sex partners ever had the right to marry under the California constitution or under California civil code. All marriages in California has occurred under a legal cloud and this court of appeals decided to act as if they had not been. That is plain wrong. It is like saying that a person isn't trespassing on private property because he is currently under negotiation with the owner of the property he has trespassed on for permission, after the fact.
The issue with Proposition 8 was that it explicitly stated that a husband is male where before it was implied (which is not the first time such action has been taken in California). How so many people have missed these constitutional facts and how it went unnoticed in the previous arguments is beyond me. Furthermore I think that this very fact is grounds for appeal and the Supreme Court ought to note this error and at the very least remand the case back to the appeals court on this basis.
But I am not a lawyer so take this opinion with the appropriate amount of salt.
However, all is not good for those who are for Proposition 8. Section 12 of the same constitution states that marriage shall not be "invalidated for want of conformity to the requirements of any religious sect." This means that if Prop 8 was argued in anyway to conform to religious principles the state cannot adopt such a measure.
You'll note that the court points out that California statutory law provides same-
sex couples "all the rights of opposite-sex couples, regardless of their marital status. Which is, in my opinion, constitutional. The state may extend all benefits of marriage to anyone it chooses without actually changing it's constitutionally defined state of marriage.
This is a part of a larger problem which is highlighted in the recent controversy over the Catholic hospitals being told they had to cover, and therefore provide, contraception for it's employees. Is marriage a secular concept or a religious one? If it is a religious one then by what basis did it enter the 1849 constitution which clearly has a problem with "religious sects" trying to change marriage? If marriage is a religious term then does the state have the right to change it's "traditional" meaning and therefore trample on the constitutional rights of citizens to their own religious tenets?
For example what happens if a same sex couple with a marriage license enters a Catholic hospital for whatever reason and for whatever reason the "spouse" needs to make a medical decision. Say that hospital, under it's religious affiliation does not recognize homosexuals as being married and refuses to consult with that "spouse"? Who wins? The state is barred from telling the religious institution what it's religious tenets are and how to observe them and the state is under an obligation to protect the equal rights of all those with valid marriage licenses. Who wins?
I take the reader back to my oft repeated solution. The state should get out of the marriage business completely. No one gets a marriage license from the state. People can register a business partnership with a tax ID and "articles of incorporation". That business unit can do what any other business entity does: Buy insurance, declare power of attorney, etc. In this way, every citizen regardless of what arrangement they willfully contract into has all the rights and responsibilities that every other citizen has. In addition, the state does not infringe on the rights of religious organizations to recognize "marriage" as they understand it. They are not serving "married" persons of any kind. They are serving representatives of Jane and Jane inc.
It will be interesting if the US Supreme Court takes this case. I think they should. I also think that the issue of how Utah became a state, by a complete trampling of their religious tenets in the name of religion, can be upheld if the Fed cannot make a moral argument against same sex marriage.
