Good article in the NYT today about the oral argument before the California Supreme Court in the California same-sex marriage case.
This is really an “m-word” case — California already has a pretty robust domestic partnership law. But as Mr. Obama has been reminding us, words do matter. Here’s my favorite part of the article:
“Domestic partnership and marriage are not equal,” Ms. Stewart [attorney for the city and county of of San Francisco] 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.
Well, we do recognize legitimate restrictions on that right. None of us, I think, would argue against prohibitions that prevent you from marrying a 14 year-old, or your first cousin, or your 14-year old first cousin (sorry, Jerry Lee). There are compelling, legitimate state interests at stake. But what’s the compelling rationale for restricting marriage to members of the opposite sex? According to the article, here’s what the State of California came up with:
But the lawyers for the governor and the attorney general agreed on the government interests that they said justified reserving the term marriage for heterosexual unions: tradition and the will of the majority.
Tradition and the will of the majority? I don’t think that’s gonna cut it — and I know, as a matter of constitutional law, that it shouldn’t.