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Same-sex marriage (SSM) in California

The U.S. Constitution's equal protection clause
and the legalization of same-sex marriage (SSM).

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Federal District Court ruling in California:

On 2010-AUG-04, California Federal District Judge Vaughn Walker ruled in a case Perry v. Schwarzenegger that Proposition 8 is unconstitutional. Prop 8 was a state plebiscite that was narrowly passed by California voters on election day in 2008. It terminated the right of loving, committed same-sex couples to marry in the state. However, couples who were already married before the date of the plebiscite were not forcibly divorced.

Judge Walker compared the wording of Proposition 8, which denies loving, committed couples the right to marry, with the U.S. Constitution's Due Process and Equal Protection Clauses.

  • "Due Process" means that nobody can be denied life, liberty or property without due process of the laws.

  • "Equal Protection" means that the government cannot treat people differently under the law, unless there is a compelling reason to do so.

He concluded that:

  • The right to marry is a fundamental right for loving, committed couples, whether they be of opposite-sex or of the same-sex.

  • Under the U.S. Constitution, marriage cannot be denied anyone without a compelling reason to do so.

  • There is no compelling reason why a state government should deny marriage to couples simply because they are of the same gender.

One day after his ruling, preparations were underway to appeal his ruling to the United States Court of Appeals for the Ninth Circuit. Whatever the decision of that court, it is almost inevitable that the case will be be appealed to the U.S. Supreme Court by the losing side. Although the Supreme Court could theoretically refuse to review the decision of the Court of Appeals, it would almost certainly agree to take up the case. That requires only three justices of the court to agree.

  • If the Court of Appeals upheld Judge Walker's ruling and the Supreme Court let the Court of Appeals' decision stand, then same-sex marriage would become legal in Alaska, Arizona, California, Guam, Hawaii, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington state. 10 It is already legal in Idaho. Such a situation would be intolerable to the four strict constructionist judges of the Supreme Court.

  • If the Court of Appeals overturned Judge Walker's ruling then is is quite possible that three liberal/moderate justices of the Supreme Court would agree that the case should be heard.

There is a strong American tradition that the states have complete control over whom may marry. In recent decades, the legality of same-sex marriage (SSM) has been mainly determined by public plebiscites. All the opposition to SSM had to do was to win 50% support from the public plus one vote to make SSMs unavailable. With this additional path headed to the U.S. Supreme Court, the legality of SSM would be determined on the basis of whether the majority of Supreme Court justices sees a compelling reason why loving, committed same-sex couples should be denied the right to marry.

The vote of the Supreme Court can be partially predicted. Four of the Justices will probably vote against SSM in a block. These are the four strict constructionists: Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. All are male and Roman Catholic. That would require the remaining five Justices vote unanimously in favor of SSM in order that it become legal. But if, by miracle, this should happen, SSM would be legalized across the entire U.S.

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What is/was considered a compelling reason to prevent a couple from getting married?:

Some of the reasons are:

  • Their age: Every set of marriage laws on the planet probably defines the minimum age that a person must reach before they are permitted to marry. Sometimes the minimum age is reduced if the individual can obtain the permission of their parent(s). At one time, 12-year-old girls in Quebec, Canada were permitted to marry if they were pregnant and if they had obtained parental permission. 11

    There is a consensus that forcing a person to marry against their will is unacceptable; that would be too close to slavery. A person has to be of a certain age before they can be considered sufficiently mature to give their informed consent to marriage. Thus, virtually everyone agrees that it is legitimate for the state to place a minimum age for marriage. Too young an age is viewed as a "compelling reason" to deny marriage to loving, committed couples.

  • Consignality: Genetic defects are much more likely if the potential spouses are too closely related. Preventing closely related persons from marrying is generally seen as a legitimate reason for government intrusion to prevent some loving, committed couples from marrying. Where to draw the line is a judgment call. Worldwide, more than 10% of marriages are by first cousins, even though "... the risk of birth defects rises from roughly 2% in the general population to 4% for first cousins." 3 In some countries in the Middle East, such marriages are strongly encouraged, and most marriage are of this type. Some U.S. states prohibit first cousins from marrying; others permit such marriages; still others permit them with specific restrictions. 3

  • Race: In the 1660's, Maryland became the first state to prohibit interracial marriages. "In case after case, legislation prohibiting racial inter-marriage was justified as unbending tradition rooting in received natural law." 4 For example, in 1869, the Georgia Supreme Court ruled that:

    "...moral or social equality between the different races...does not in fact exist, and never can. The God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it. There are gradations and classes throughout the universe. From the tallest archangel in Heaven, down to the meanest reptile on earth, moral and social inequalities exist, and must continue to exist throughout all eternity." 5

    What seemed obvious to the vast majority of Americans in the 19th century eventually became unacceptable to some in the 20th century. By the 1950's, only half of the states still had anti-miscegenation laws on the books. The U.S. Supreme Court declared all such laws unconstitutional in 1967 in the ironically worded case "Loving v. Virginia." By 1991, American adults opposed to inter-racial marriage became a minority. Interracial marriages that were once prohibited by law have now become routine. What was once considered a compelling reason for the state to interfere in marriage has evaporated.

  • Religion: Some faith groups forbid their members from marrying outside the group or outside the religion. These are often called mixed, mixed-faith, interchurch, interfaith, intrafaith, bicultural, or interreligious marriages.

    • Conservative Christians often use as a justification the profoundly religiously intolerant statement by Paul in 2 Corinthians 6:14: "Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness?"

    • A long-standing Muslim tradition is that a woman must only marry a fellow Muslim. Another tradition is that the husband is unquestionably the head of the household and that it is intolerable for a non-Muslim to be in a position of authority over a Muslim. Thus a Muslim man can marry a Christian or Jewish woman, but not vice-versa. This tradition is sometimes enforced by law. For example, Nasr Hamed Abu Zeid a prominent Egyptian academic was deemed to have left the faith of Islam and become an apostate because some of his writings were seen to insult the religion. He had suggested that Islam needed to go through a spiritual and theological reformation similar to that of Christianity during the Protestant Reformation. We was ordered by the court to divorce his wife. The couple left Egypt instead and took up residence in the Netherlands. 6 He was lucky; in some countries apostasy from Islam is a capital offense.

    • The Conservative and Orthodox movements in Judaism generally refuse to marry inter-faith couples. Reform, Reconstructionist and Liberal Jewish traditions have a range of reactions to inter-faith marriages. Of all the countries in the world, Israel probably has the least tolerant laws concerning whom may marry. If one or both members of a Jewish couple are not Orthodox, they have to leave the country, get married in a foreign land, and then register their marriage upon their return to Israel. Thus, a very large percentage of Jewish couples in Israel cannot marry within their own country.

In 1997, 30% of all marriages sanctioned by the Catholic Church in the U.S. were interfaith; this was as high as 71% in Burlington, VT. (Vermont is generally considered the most secular state in the country). 7 "The 1990 National Jewish Population Survey reported an intermarriage rate of 52% among American Jews. These data are probably both higher today. When their religious group refuses to marry them, couples often enter into a civil marriage.

Again, a strong, religiously-based prohibition has melted over time and is now largely ineffective. Although there are unenforceable laws on the books in several states that prohibit non-theists from holding public office, to our knowledge, there are no laws prohibiting couples of different religions from marrying. If there were, the laws could not be applied because the First Amendment of the U.S. Constitution prohibits government intrusion in religious matters.

  • Numbers of spouses:
    • Only marriages between two people are legal in the U.S. Plural marriages come in many forms: Polygyny where one man marries multiple women, polyandry where one woman marries multiple men, and group marriage where more than three persons of various sexes marry. Polygyny was once practiced by members of the Church of Jesus Christ of Latter-day Saints, the main Mormon denomination. Anti-polygamy federal legislation in the 19th Century stripped Mormons of their civil rights, threatened disincorporation of the Mormon Church, and permitted the government to seize church property. Just in time, in 1890, the church received a revelation from God that suspended the practice, a least temporarily. In reality, a few senior members of the Church were secretly married to plural wives well into the 20th century.

    • In Canada. polygamy is illegal under Section 293 of the Criminal Code of Canada. It is thus prohibited across the entire country. However, the constitutionality of this law is in doubt. Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful BC have engaged in polygamy for decades. Under The Canadian Charter of Rights and Freedoms, Canada's Constitution, they may be guaranteed that right if it is held for religious reasons.

    • When people claim that marriage has always been between one man and one women, they are clearly wrong:

      • In Biblical times, a man would leave his family of origin and join with his first wife. Then, as finances allowed, he might choose to marry as many additional women as he desired and could afford. The new wives would join the man and his other wives in an already established household. This is still practiced by separated fundamentalist Mormon groups which have left and been excommunicated from the main church. In the Hebrew Scriptures, Lamech, Esau, Jacob, Ashur, Gideon,Elkanah, David, Solomon, Rehaboam, Abijah, Jehoram, Joash, Ahab, Jeholachin and Belshazzar are mentioned as having had polygynous marriages. There is no mention of polyandrous marriages involving one women and multiple men. It would be surprising if there were such arrangements, because women were generally considered property at the time. Herod the Great in the first century BCE had nine wives.

      • Many Asian, Middle Eastern and African countries currently permit polygamy. However, only a minority of marriages are polygamous. The rules governing the practice have been made more stringent In Islamic countries. Only the wealthier men are able to comply with the Koran's requirement that a man who takes on more than one wife be able to afford each of them and their children adequate and equal protection and benefit. 8

    • Some people claim that allowing more than two persons to marry would have certain advantages:

      • Polygamy now exists in practice; legalizing them would simply recognize existing unions.

      • If they were legalized, then all partners and their children would have defined rights, and protections.

      • There is an increased probability of children being born in the family, particularly in those cases where a wife is infertile.

      • There is a surplus of older unmarried and widowed women. The ratio of women to men in their mid-70s is about 2 to 1 in many developed countries. Polygynous marriages could help older women find partners, security, and happiness.

      • Some developing countries have lengthy postpartum sexual taboos. Having multiple wives in such circumstances may increase men's sexual satisfaction.

      • Sharing of earnings by more than two spouses in a family could result in a higher overall standard of living for the family.

    • Others find the concept of polygamy abhorrent:

      • In practice, polygamy, particularly when coupled with an authoritarian male-dominated family leadership, sometimes leads to major abuses of young children who are forced into marriages with older men.

      • Allowing one man to marry many women can result in a lack of women for other men to marry. This problem has been solved in the Fundamentalist Church of Jesus Christ of Latter Day Saints by expelling and abandoning teenage boys from the group without support.

      • In cultures where the husband is expected to work outside the home and women are expected to be homemakers, the standard of living may be lowered through polygamy because the husband's earnings have to be stretched to support multiple women.

      • A study by Sisters in Islam in Malaysia during 2008-AUG to 2010-APR found some very negative side-effects of polygamy. A Muslim man in that country can marry up to 4 wives; polygamy is illegal for non-Muslm men. The group determined that:
        "... at least 90% of 523 children interviewed insisted they would not start polygamous households when they grew up. ... Nearly 70 percent of 259 women whose husbands took a second wife would not recommend polygamy and said their husbands were now unable to meet their needs fairly. Many wives felt betrayed when their husbands married another spouse -- 65% of those interviewed were not consulted first. They also reported feeling ashamed and isolated themselves from their friends. 9
      • There is widespread abhorrence to the concept of polygamy.

      • There is the perception by many civil libertarians and feminists that polygyny inherently subjugates women.

      • If polygamy were legalized, then any existing marriage of two spouses could become a polygamous marriage at any time in the future. That could have unknown and potentially very damaging effects on the institution of marriage.

    • A court case to determine the legality of religiously-motivated polygyny in Canada will probably determine the matter in the near future. A similar court case in the U.S. may well be launched.

At the moment, there seems to be many reasons why courts could find a compelling reason why polygamy should not be legalized

before they tried to legalize same-sex marriage.

However, a group in Hawaii attempted to have SSM legalized there during the 1990s. This triggered the federal Defense of Marriage (DOMA) law which prevents the federal government from recognizing same-sex marriages. It denies same-sex married couples over 1,100 federal benefits, and protections. Many states implemented their own DOMA laws.

Ignoring Utah, which is a special case due to the high percentage of Mormons there, support for SSM has varied:

    • Between 12% in OK to 36% in NY between 1994 and 1996
    • Between 17% in OK to 46% in MA between 2003 and 2004
    • Between 20% in OK to 56% in MA between 2008 and 2009.

Public support for civil unions, which grant registered same-sex couples all the state rights of marriage without being able to describe themselves as married, is much higher.

Proponents of SSM generally view it as a fundamental human right, and see no compelling reason why it should not be made available to loving, committed couples of the same gender. Some liberal faith groups see SSM as a religious freedom issue: they would like to marry the same-sex committed couples in their congregations but are prevented from doing so by the marriage laws. Further, they point to several recent long-range studies showing that children thrive equally well in families led by same-sex or opposite-sex parents.

Many opponents of SSM initially based their rejection of SSM on their belief that the main reason for marriage was the procreation of children. Also, they view males and females as having very different roles in the family. They have since largely switched to the belief that legalizing SSM would be an attack on the religious freedom of those faith groups who oppose SSM. They anticipate that court cases would arise that might force religious groups to violate their policies by requiring them to marry same-sex couples. It might force individuals to deliver services -- like fertility treatments -- to persons of all sexual orientations. They point to some studies that indicate that children who are genetically related to both of their parents in an intact marriage thrive better.

At the present time, many religious and social conservatives see many compelling reasons why SSM should be banned. Many religious and social moderates and liberals see no compelling reason. The courts' decisions will be determined by the personal philosophies of the judges and justices involved.

References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Geoff Kors, "Court rules Prop 8 unconstitutional -- Nov. election critical to case!," Email, Equality California, 2010-AUG-04.
  2. "Governor Schwarzenegger Issues Statement on Proposition 8 Ruling ," Office of the Governor, 2010-AUG-04, at: http://gov.ca.gov/
  3. "Cousin marriage," Wikipedia, as of 2010-JUL-26, at: http://en.wikipedia.org/
  4. "Lewis et al., v. Harris, et al. Superior Court of New Jersey: Brief of plaintiffs in opposition to defendant's motion to dismiss," 2003-MAY-8, at: http://www.lambdalegal.org/
  5. Scott v. State, 39 GA 321 (1869). Quoted in Ref. 4.
  6. Salah Nasrawi, "Nasr Abu Zeid, Egyptian scholar once accused of apostasy for liberal views on Islam, dies," Associated Press, 2010-MAY-07, at: http://www.winnipegfreepress.com
  7. "Interfaith marriage in Judaism," Wikipedia, as at: 2010-AUG-04, at: http://en.wikipedia.org/
  8. "Islamic Family Law," Emory University, 2002, at: http://www.law.emory.edu/
  9. "Polygamy opposed in Malaysia study," Belfast Telegraph, 2010-JUL-22, at: http://www.belfasttelegraph.co.uk/
  10. "Map of the Ninth Circuit," United Sates Court of Appeals for the Ninth Circuit, at: http://www.ca9.uscourts.gov/
  11. "Re: Story of Marie Olivier Sylvestre Manitouabeoich PART II," Salois Family Genealogy Forum, at: http://genforum.genealogy.com/

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Copyright © 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-AUG-05
Latest update: 2010-AUG-05
Author: B.A. Robinson

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