Monday, August 25, 2008

The Arizona Marriage Amendment -- Additional background from the California Court

In recent posts, I have summarized a portion of the California Court decision in the case of

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

In summary, so far, the California Court has acknowledged that "current California statutory provisions generally afford same-sex couples the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples. "

The California Court contrasts this with Federal Law and notes:

"In light of the current provisions of federal law, the many federal benefits (and the amount of those benefits) granted to a married person or to a married couple on the basis of their married status are not available to registered domestic partners. Included within this category are significant benefits such as those relating to Social Security, Medicare, federal housing, food stamps, federal military and veterans’ programs, federal employment programs, and filing status for federal income tax purposes. All of these important federal benefits, however, also would be denied to same-sex couples even if California designated the official union of such couples a marriage rather than a domestic partnership, because, as noted, federal law defines marriage for purposes of federal law as “only a legal union between one man and one
woman.” (1 U.S.C. § 7.)"

So, if California, as a state, has already given same-sex couples all of the rights and benefits it can possibly give, and if the Federal Government seems to disagree, in principle, with California, what more can California do? The California Court explains its goal:

"Because the California Legislature already has enacted a comprehensive domestic partnership law which broadly grants to same-sex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of the burden of successfully prosecuting a constitutional challenge to obtain those substantive rights and benefits. Thus, in this proceeding, we are faced only with the narrower question that logically ensues:whether, in light of the enactment of California’s domestic partnership legislation, the current California statutory scheme is constitutional." (emphasis in the original).

In other words, the California Court does not feel that it needs to give domestic partners more rights, they justify their decision on the basis that the legislation has already accomplished that goal. The issue is one of labels. The Court views "marriage" as a label, no more and no less. A label that must be applied to domestic partners because under California law they already have all the rights of marriage.

Now why is this an attack on marriage?

Here is the answer directly from the California Court:

"Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry."

It is interesting that a relationship that was considered by society as a whole to be illegal and immoral is now to be accorded the "dignity, respect and stature" of what the Arizona Court has called "a relationship in which “the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.” Nelson, 604 F.Supp. at 593 (quoting Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888))"

More later.

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