Friday, May 16, 2008

In re Marriage Cases: "Marriage" By Any Other Name Not as Sweet

Yesterday the California Supreme Court decided whether the Legislature's failure to designate the official relationship of same-sex couples as marriage violates the California Constitution. California has domestic partnership legislation that, unlike many other states' domestic partnership and civil union laws, ostensibly provides a same-sex couple the same rights and responsibilities as married heterosexual couples. The issue before the court was whether California law limiting the designation "marriage" to a union between a man and a woman unconstitutionally denied that designation to a domestic partnership.

Here's an excerpt from the 160-page opinion:

[U]pon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opporunity of an individual to establish -- with whom the individual has chosen to share his or her life -- an officially recoginzed and protected family posessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally desginated as marriage. . . .

We need not decide in this case whether the name "marriage" is invariably a core elementof the state constitutional right to marry so that the state would violate a couple's consitutional right even if -- perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage -- the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples. . . . One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple's right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relatinship of same-sex couples while reserving the historic designation of "marriage" exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple's consitutional right to marry under the California Constitution."

1 comment:

Jeffrey H. Kahn said...

An article by our (soon to be former, unfortunately) colleague Carlos Ball is cited in the opinion in footnote 43.