California has taken to the courts to fight a battle that is likely to be waged in New Jersey in the state Legislature perhaps as soon as this year. At issue is whether California’s domestic partnership law confers second-class citizenship on same-sex couples — a contention made by New Jersey’s gay and lesbian community and a panel authorized to review the Garden State’s civil union law.
The California high court ruled in 2004 that San Francisco could not issue marriage licenses to gay and lesbian couples because the state banned same-sex marriages. But it did not rule on the constitutionality of the state ban itself.
That’s where the current fight comes in, according to The New York Times. California’s
state ban on same-sex marriage is based on a law enacted by the Legislature in 1977 and a statewide initiative approved by the voters in 2000 that defined marriage as being only between a man and a woman. The question before the court is whether those laws violate provisions of the state Constitution protecting equality and fundamental rights.
A central argument being offered by supporters of same-sex marriage is that the use of different terminology creates separate classes of citizens.
“Domestic partnership and marriage are not equal,” Ms. Stewart said. “Words matter. Names matter.”
The Supreme Court here was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The United States Supreme Court did not follow suit until 1967.
Ms. Stewart asked whether giving interracial couples the same rights under a different name — “say we called it transracial unions instead of marriage,” she said — would have satisfied the state Constitution in 1948.
Several of the justices seemed receptive to the analogy. Chief Justice Ronald M. George, seen by many here as the swing vote on a closely divided court, paused three times during the argument to quote from the Perez decision.
“The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” Chief Justice George said at one point, quoting a passage from the Perez decision by Justice Roger J. Traynor, who would go on to become chief justice of the court.
The state’s argument essentially boils down to “take it slow; society isn’t quite ready.” (The arguments of the anti-gay groups are based on fear and loathing and do not warrant a response.)
The state maybe right about society, but that’s not a good enough reason to maintain separate classes of couples. If fails the basic standards of fairness and justice.
There is another aspect to this that needs to be raised, perhaps legally, and that is a First Amendment challenge. Marriage, as it is presently constructed, is based on a religious right. Allowing religion to dictate the law seems a violation of the separation clause, a violation of same-sex couples’ rights to come together and be recognized by the state.
The real answer is to remove the word marriage from the statute book altogether and leave that to the religious realm and individual choice. Let the law structure the rights of couples, regardless of whether they are man and woman, man and man or woman and woman.
South Brunswick Post, The Cranbury Press
The Blog of South Brunswick
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