Judicial Activism: Same Sex Marriage And The Aftermath Of Proposition 8
PROPOSITION 8—LIMITING THE DEBATE
Oral arguments before the California Supreme Court regarding the validity of last November’s Proposition 8 will be heard on March 5th. A decision could be had by early summer, and yet whatever the court decides, dissent and debate will surely continue. It is unlikely that any court ruling could substantially alter an individual’s fundamental beliefs about marriage and its role in society. Therefore, in order to have rational academic debate, both sides must strip out the emotional, moral aspects of the controversy, and focus in on the legal aspect—that the state of California defines marriage as legally binding contract, and nothing more.
When discussing the legality of marriage in California, it helps to see marriage the way the state sees it—as “a personal relationship arising out of a civil contract.” CA Family Code § 300(a). From formation—consent, licensure, recordation, solemnization—to dissolution, and all the attendant rights, duties, and responsibilities in between, marriage is a state-controlled interest, subject to conformance with the statutory requirements, and granted at the state’s discretion. Two persons in California may consent to marry, believe they are married, or even undergo spiritual solemnization of their union and still not be married under the law. Morality, history, and religious beliefs have nothing to do with their legal status.
Viewed in its pure legal form, the debate surrounding same-sex marriage becomes clear. Currently, the Family Code provides, and Prop 8 reaffirms, that the state will only sanction a marriage contract between a man and a woman. No other contractual privilege is limited by the gender of the parties, nor would that be tolerated. Since the state’s interest is limited to marriage as a civil contract, so too should the Prop 8 debate.
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