The 1879 California constitution is a greatly expanded document which includes a great deal of detail as to the form of government who is and is not a citizen, legislative limits, and a great deal of copy from the US Constitution. As was correctly pointed out, the word "her" does not exist in the 1879 document as it does in the 1849 document. This is explainable and also does not change the meaning of "wife" as referenced in either document.
The original 1849 document had 2 references as pointed out in my original piece:
ec. 12. No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect.
and
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.
Section 12 remained in the new constitution as Section 7 of Article 20
Section 14 was completely removed.One can guess why but the most likely reason for this is that section 14 was a placeholder for laws that were anticipated to be passed in regards to the rights of women and wives. Between 1849 and 1879 it can be assumed (or researched if you like) that the laws anticipated in 1849 were dealt with and that the framers no longer saw the need for that section. Hence it's removal. To suggest though that the removal of section 17 was because the framers actually meant to remove "her" in reference to "wife" is laughable and untenable.
Why do I say that? There are few reasons:
1) The explicitly sexist (by our standards) definition of citizen found in the 1879. Citizenship was explicitly male. The same constitution blatantly discriminated against "Chinese" by name. To even suggest that the same people who saw citizenship as male and non-Chinese and non-Mongolian thought that wife and husband were anything other than a pairing of female and male is ludicrous.
2) Besides this clear lingual evidence we also have the fact that the 1879 constitution also has the following:
"SEC. 11. All laws relative to the present judicial system of the State shall be applicable to the jUdicial system created by this Constitution until changed by legislation."
This means that before the 1879 constitution went into effect there were a set of laws on the books. There was no expectation that the laws that were passed under the old constitution would be null and void. Rather they were to be considered just as valid as anything passed after the ratification of the 1879 constitution unless they were changed via legislative process. This means that if the courts already considered wife as "her" or female gender, it was still the operating assumption. Since it is demonstrable that wife was indeed considered "her" and "she" prior to the 1879 constitution then it also applies post 1879 constitution.
3) The California Civil code, under which marriage falls, contains a number of bits that supports the assumption of male- female marriage:
California Civil Code Section 22.2 "The common law of England, so far as it is not repugnant to
or inconsistent with the Constitution of the United States, or the
Constitution or laws of this State, is the rule of decision in all
the courts of this State."
Furthermore:
California Civil Code Section 5: "The provisions of this Code, so far as they are substantially
the same as existing statutes or the common law, must be construed as
continuations thereof, and not as new enactments."
What this means is that the California civil code, the common law of England is considered to be the rulefor all courts in the state so long as it was consistent with the US Constitution. This means that the California court used English common law understanding of marriage when discussing husband and wife. So of course we must ask what is the Engish common law understanding of matrimony?
The related English word "matrimony" derives from the Old French word matremoine which appears around 1300 C.E. and ultimately derives from Latin mātrimōnium which combines the two concepts mater meaning "mother" and the suffix -monium signifying "action, state, or condition."
Clearly then, under English common law thought of marriage as between a man and woman and therefore wife as "she" and "her" and husband as "he" and "him"
Even Stonwall UK, notes on it's website that English common law did not recognize homosexuality as valid.
1290
First mention in English common law of a punishment for homosexuality
1300
Treatise in England prescribed that sodomites should be burned alive
It is clear then that English common law is and was the basis of California civil law. It is clear that English common law did not 'approve of" or recognize as valid any sort of homosexual activity. It is clear that the framers of the California constitution understood wife and husband as "she" and 'he" respectively and that marriage was between a man and a woman.
Since all of this is clear and understandable by anyone who can comprehend the texts as plainly written. How did the justices come to the conclusion that at no time before November 2008 that were homosexuals denied the privilege of marriage? In addition why was Proposition 8 even written and passed since it was clearly unnecessary due to a plain reading of the relevant law?
I think this ought to go to the Supreme Court and that these issues should be dealt with. The way I see it, if the legislature of California wishes to extend the franchise then it should be free to do so. But it should be clear that it is a change in status rather than some misreading of the relevant law.
