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Cal Supreme Court - More Harm than Good on issue of Gay Marriage?

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Message Donald MacKay

Today the California Supreme Court handed down its 172 page (including dissents) decision in case number S147999 In re MARRIAGE CASES, an ironically mundane name for such a momentous decision.

In simple terms, the Court's majority held that the California Constitution does not allow denying same-sex unions the status of "marriage". This effectively nullifies Proposition 22, California's flavor of the "Defense of Marriage Act" which was passed by 61.4 percent of voters (figures on the total number of voters participating in that election was not given. For those who wish to continue denying "marriage" to same-sex unions, the next step would be to promote a constitutional amendment as have been approved by voters in several other States. I am concerned this could become a reality.

Like the dissenters in MARRIAGE CASES I will state my personal view on the matter. Should same-sex couples be able to be "married" if they wish? The short answer is yes. Why? Because none of the reasons for limiting it to opposite-sex couples holds up under scrutiny, and because I believe that to do so is an impermissible discrimination based upon gender which is prohibited by the U.S. Constitution.

So, why am I complaining here? Because I believe the dissents of Justices Baxter and Corrigan make some good points.

Unlike certain U.S. Supreme Court Justices who shall remain nameless, I am all for treating Constitutions as living, breathing documents. When feasible they should be interpreted against the backdrop of civilization at this moment in time. But they also should be interpreted with an eye towards the original intent of those who actually wrote and approved them (also unlike those nameless Justices).

Recent history in California is that a strong majority of voters believe that "marriage" should be reserved to opposite-sex couples. It is that simple. The People have spoken, very recently, and that should be respected. The majority of this Court chose to ignore the will of the people while writing, endlessly, how they were, in fact, doing the will of the people as found in the California Constitution. The majority pointed to various, recent statutory enactments, particularly the Domestic Partnership Act, as evidence to support its interpretation of that will. Apparently, Proposition 22, only slightly older, and which spoke directly upon the subject at hand, was not as helpful in the Justices' search for meaning in the California Constitution.

What I suspect we will see is a backlash that will harm the cause of gay, lesbian and transgendered persons' rights. I hope that backlash will be small and short-lived.

Compared to most other States, things are pretty good for same-sex couples in California. Recent decisions by California courts have been steadily clarifying the Domestic Partnership Act in such a way that registered same-sex partnerships are, in the eyes of the law (if not in eyes of the average joe on the street), functionally equal to marriages.

Society, as a whole, is moving towards understanding that human beings are worthwhile creatures without regard to whom they love (not to say that marriage is necessarily about love). I certainly hope that, in 20 years, I will look back on today's decision as a giant step forward in that movement - not a step backwards.

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Donald A. MacKay is an attorney licensed in California and Wisconsin who would much rather write opinion pieces - about his own opinions - than hard-hitting, well researched, and news-worthy articles.
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Cal Supreme Court - More Harm than Good on issue of Gay Marriage?

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