The California Supreme Court's Edict Redefining Marriage Will Affect All Americans
by Chris Gacek
On May 15, 2008, the Supreme Court of California ruled (In re Marriage Cases) that the male-female definition of marriage, made explicit by both a 1977 state statute and the state electorate's approval of Proposition 22 in 2000, was unconstitutional. The Court asserted that legal distinctions based on sexual orientation would be subject to "strict scrutiny" - in the same way classifications based on "gender, race, and religion" are. In point of fact, few laws, regulations, or state actions that distinguish among persons or groups in any way can survive the intensity of "strict scrutiny" legal review.1 Except in the rarest circumstances, California statutes that are challenged for drawing lines even implicitly based on sexual orientation will now be struck down. Here are some examples of what may happen in California and around the nation as a result of this ruling:
Clear governmental disapproval, both direct and indirect, will attach to anyone or any organization in California that rejects the legitimacy of same-sex marriage.
Public schools will teach the fully equal status of homosexual and heterosexual conduct based, in substantial part, on state marriage law. Those who object may find themselves on the wrong side of the law.2
Religious-based adoption agencies that refuse to place children with same-sex couples (like Catholic Charities in Massachusetts) will be forced to discontinue operations unless licensing waivers are granted; such waivers are unlikely to withstand constitutional challenge.
Faith-based organizations that do not recognize same-sex marriage could lose their California tax exemptions (e.g., see the 1983 Bob Jones University case dealing with federal tax exemptions). Since the Bob Jones case dealt with interracial dating, it could now serve as an indirect precedent for punishing a Christian college that discourages or prohibits same-sex dating while allowing male-female dating.
Although the court said in passing that "no religious officiant will be required to solemnize" a same-sex marriage, such protection may not apply to property owned by a church or ministry. For example, a boardwalk pavilion in Ocean Grove, N.J., owned by the Methodist Ocean Grove Camp Meeting Association, lost its state tax-exempt status after the association refused to allow the pavilion's use for two lesbian couples' civil union ceremonies.
Speech rights of state or local government employees will be trampled with greater force. We have already seen this in the case of two Oakland, Calif., employees who advertised a meeting of a pro-family group on a workplace bulletin board already used to promote a variety of political, sexually oriented, and pro-homosexual causes. A federal district court and the U.S. Court of Appeals for the Ninth Circuit ruled that the "Good News Employee Association" had no right to post its message.
State or county clerks may be forced to issue same-sex marriage licenses despite religious or conscientious objections. San Diego County Clerk Gregory Smith is trying to protect the 115 clerks in his office who object morally to the issuance of marriage licenses for same-sex couples, but his effort is already under attack from San Francisco Mayor Gavin Newsom.
Because California has no residency requirement for marriage - unlike Massachusetts - same-sex couples will wed in California and return en masse to other states, seeking recognition of these marriages pursuant to the Full Faith and Credit Clause of the U.S. Constitution.
The return to their home state of same-sex couples wed in California will allow for the constitutional testing of the 1996 Defense of Marriage Act adopted by Congress. Activist federal judges may strike down a state's ability to choose not to recognize out-of-state same-sex marriages.
1 As the majority noted, laws subject to this standard "must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest."
2 In April 2005, David Parker, the parent of a six-year-old boy, protested to the Lexington elementary school after his son was taught about homosexual "families" in his kindergarten class. At a scheduled meeting at the school, when Parker refused to back down from his request that the school honor the Massachusetts parental notification statute, he was arrested for "trespassing," handcuffed, and put in jail overnight. The next morning Parker was led handcuffed into court for his arraignment, and over the next several months endured two subsequent court appearances before the school district backed down and decided to drop all charges against him. He later filed a civil rights action against the school district that was dismissed by Judge Mark L. Wolf (federal district court). The dismissal was affirmed in Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008).
