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Jeff Jacoby

Misunderstanding marriage in California

By Jeff Jacoby
Globe Columnist / May 21, 2008
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CALIFORNIA'S voters, unlike their counterparts in Massachusetts, will have the last word on what marriage means in their state. When the highest court in Massachusetts conjured up a constitutional right to same-sex marriage, 170,000 Bay State voters petitioned for an amendment to the state constitution that would restore the age-old definition. Their effort died on the vine when the Legislature derailed the measure before it could reach the ballot.

But citizen initiatives aren't so easily thwarted in California, where last week the state supreme court, in a 4-3 ruling, likewise overturned the timeless understanding of marriage as a union of male and female. Some 1.1 million signatures have already been submitted on behalf of a constitutional amendment making clear that "only marriage between a man and a woman is valid or recognized in California." That is far more than needed, making it virtually certain that Californians will have an opportunity to override the court's presumptuous diktat.

And override it they should, for numerous reasons. Here are three:

It is not the business of judges to make public policy.

Reasonable men and women can disagree on whether same-sex unions should be granted legal recognition, or whether such recognition should rise to the level of marriage. The place to work out those disagreements is the democratic arena, not the courtroom.

"From the beginning of California statehood," the court's majority opinion admits, "the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman." Eight years ago, Californians decisively affirmed that understanding when they adopted Proposition 22, the California Defense of Marriage Act, in a 61-39 landslide. To have legitimacy, any change in that consensus must come from the people or their elected representatives, not be forced upon them by an imperial judiciary.

The radical transformation of marriage won't end with same-sex weddings.

In American law, certain conditions of marriage have always been nonnegotiable. A marriage joins (a) two people (b) of the opposite sex (c) who are not close relatives. Under that venerable definition, there can be no valid same-sex marriage, no polygamous or other plural marriage, and no incestuous marriage. But if the opposite-sex requirement is an unconstitutional infringement on the right to marry - which the California court explains as "the right of an individual to establish a legally recognized family with the person of one's choice" - then so are the restriction of marriage to two people and the ban on incestuous marriage. If two women who wish to marry each other must be permitted to do so, why not two sisters? Why not three?

In a footnote, the California court weakly tries to evade the consequences of its holding. Gay and lesbian couples are entitled to marry, writes Chief Justice Ronald George, but that "does not mean that this constitutional right . . . must . . . extend to polygamous or incestuous relationships." Why not? Well, because "our nation's culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry." So while the bar to homosexual marriage must be overturned because the court considers the public's opposition to it outdated, the public's opposition to incest and polygamy is still a good reason to bar them. As one of the dissenters notes, such logic invites a future court to overturn those prohibitions as well.

Society has a vested interest in promoting only traditional marriage.

Men and women are not interchangeable, and same-sex unions - no matter how devoted and enduring - cannot take the place of a married husband and wife. The essential function of marriage is to unite male and female. That is the only kind of union that can produce new life, and therefore the only kind of union in which society has a survival stake.

Of course many gay and lesbian relationships are stable, loving, and happy. But since they cannot do what marriage can - bind men and women to each other and to the children that their sexual behavior may produce - they have never been regarded in the same light as marriage. Somehow, that crucial distinction eluded a majority of the California Supreme Court. Happily, California voters will soon have the chance to make things right.

Jeff Jacoby's e-mail address is jacoby@globe.com.

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