Pew Forum on Religion & Public Life
Same-Sex Marriage in California: Legal and Political Prospects
Bonaventure Hotel, Los Angeles
California has been one of the most active battlegrounds in the same-sex marriage debate. The fight began in earnest in 2000, when the state's voters passed Proposition 22, which defined marriage as the union between a man and a woman. Four years later, following the legalization of gay marriage in Massachusetts, San Francisco began issuing marriage licenses to same-sex couples, a move quickly rebuked by the state Supreme Court. In September 2005, the California Assembly became the first state legislature in the nation to deliberately approve same-sex marriages. Governor Arnold Schwarzenegger ultimately vetoed the bill on the basis of Proposition 22. Now, the California Supreme Court is considering whether Proposition 22 violates the state constitution's guarantee of equal protection under the law.
The Pew Forum on Religion & Public Life, The American Constitution Society, The Federalist Society and The USC Annenberg Knight Program convened a distinguished panel of experts to discuss the upcoming state Supreme Court case and other legal issues, as well as the political prospects for same-sex marriage in California and around the nation. Speakers included: the Hon. Ken Starr, Dean and Professor of Law, Pepperdine University School of Law; Shannon Minter, Legal Director, The National Center for Lesbian Rights; John Eastman, Professor of Law & Community Service and Director of The Claremont Institute Center for Constitutional Jurisprudence, Chapman University Law School; and David Codell, Founding Partner, Law Office of David C. Codell.
Moderator: Dean Reuter, Director of Practice Groups, The Federalist Society
In the following excerpt from the transcript of the meeting, ellipses have been omitted to facilitate reading. Read the full transcript at pewforum.org.
DEAN REUTER: our topic today is gay marriage, or same-sex marriage, or homosexual marriage sometimes with "marriage" in quotes, depending on who you talk to. In my experience, when you're dealing with an issue on which the folks most intimately involved in it can't agree on how to name it, you're in for a lively debate and that's what we expect today.
This is a topic being discussed nationally and state by state. It's being litigated here in California, and each of our panelists is involved in some way with that litigation. We are going to focus on the California case as our focal point and broaden the debate from there.
SHANNON PRICE MINTER: My colleague Mr. Codell and I represent same-sex couples who are seeking the right to marry in a case that is currently before the California Supreme Court; Judge Starr and Professor Eastman have weighed in on the other side of that case. Despite appearances, however, this is not a partisan issue; it is not ultimately an issue about conservative versus liberal views. Many of the judges who have ruled in favor of same-sex couples have been Republican appointees.
And if I can speak personally just for a moment, my parents who are arch-conservative, Texas Republicans, have over time come to embrace full equality for lesbian and gay couples including marriage. In short this is not an issue that lends itself to simple political or ideological labels. It is ultimately a human issue. The reality, as we know from the most recent federal census, is that more than 100,000 same-sex couples live in California. That's more than in any other state. Those couples live in every single county in this state, and we know that more than 70,000 children in California have lesbian and gay parents. The question is: How do we deal with this reality? How should the law respond?
In representing these families before the California courts, Mr. Codell and I have argued that the state is constitutionally required to treat these families equally. We believe this is required by the equal protection clause of our state constitution, which prohibits government discrimination based on sexual orientation and gender and any type of government discrimination that lacks a rational basis. It's also required by the privacy clause of our state constitution that has long been held to protect the right to marry.
In the meantime, however, there is one point on which all parties in this case agree, and that is the importance of marriage. In 1948, the California Supreme Court became the first in the country to strike down laws that bar interracial marriage and they held in that case that marriage is a basic civil right. The U.S. Supreme Court has described marriage as a vital personal right, essential to the orderly pursuit of happiness.
Judge Starr has written, quote: "Marriage and family are indeed the quintessential little platoon that Edmund Burke famously celebrated as the first principle of public affections, the first link in a series by which we proceed toward a love of country and to mankind." It's a terrible mistake, however, to think the little platoons headed by same-sex couples are any less worthy or capable of achieving those very noble purposes than any other. Society benefits when couples marry and that is true regardless of their sexual orientation.
There is not one study showing children are harmed in any way by having lesbian or gay parents. To the contrary, as Mary Cheney recently stated in response to criticisms of her decision to have a child with her female partner that every piece of remotely responsible research that's been done in the last 20 years has shown there's no difference between children raised by same-sex parents and children raised by opposite-sex parents. What matters is that children are raised in a stable loving environment. That's also the position of the American Academy of Pediatrics and literally every single other mainstream child welfare organization.
Justice Scalia has said courts can take no better measure to assure that laws will be just than to require the laws be equal in operation.
KENNETH W. STARR: This is obviously not just a manifestly important issue, but also, as Shannon has so eloquently put it, this is also a profoundly human issue. It's therefore not surprising that people of goodwill are going to come to contrary views on issues of law and constitutionality, and thus we find ourselves in litigation. My happy role is serving as co-counsel to a consortium of very diverse religious organizations [including] the Church of Jesus Christ of Latter-day Saints, the Catholic Conference of Bishops of California, the National Union of Orthodox Jewish Congregations of America and the National Association of Evangelicals.
Shannon made a wonderful and powerful statement that this is not a political issue. This is a policy issue, and my fundamental position today is that the issue should be submitted to "We, the people."
If there is one overriding theme that we see in the California Constitution, and people here in this audience know it far better than I do, it is deeply concerned about the voice of the people. The people will be heard and they will be heard directly, not through intermediaries and certainly not through relatively unaccountable intermediaries. This is a vision that should unite virtually everyone of goodwill across ideological lines. In his dissent in Lochner, Justice Holmes said that the Constitution doesn't yield up answers to the vast majority of economic and social policy issues, but rather provides a framework for democratic conversation.
Let us, as part of the conversation, understand family structures more, because Dean Reuter made a very interesting comment. He talked about the Family Code. Imagine if you would the free speech code. Imagine the free press code. We recoil at the idea of a code, but go to the California Family Code. See how elaborate it is, including who one can marry. What we do know is there are profound limitations on state power, and we should be thankful for those limitations, especially with respect to the idea of invidious discrimination and seizing and hijacking the marriage relationship in order to achieve apartheid-type values.
Friends, look at the list of countries that have the conversation actively underway, but have not embraced same-sex marriage. Let's have the social science. Let's allow the conversation. A very small minority of countries do in fact allow it. And why is that? Because thoughtful people are saying this institution, which has historically been understood to be the union of one man and one woman, is in fact part of our history and part of our tradition, part of our culture and before we change it, before we alter it, shouldn't we in fact know more in terms of social science, in terms of consequences?
DAVID CODELL: First, I want to offer a few words about recent efforts to enact the so-called Federal Marriage Amendment to the U.S. Constitution. I think one has to hear the text of the proposed amendment to believe it: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the Constitution of any State shall be construed to require that marriage or the legal incidence thereof be conferred upon any union other than the union of a man and a woman." Such an amendment would be an utter affront to traditional understandings of state sovereignty and the appropriate balance of federal and state power that is the hallmark of our federal system. The amendment will prohibit states from treating their own residents as married couples. Moreover, it is conceivable, though not definite, that such language might be construed as prohibiting states through their own republican institutions or direct democracy from choosing to recognize the marriages of couples within their states. By its terms, the proposed amendment would mandate to every state court how it is to interpret its own state constitution and laws.
There is more than a little irony in the proposed amendment's radical disrespect of state courts. Presumably, some marriage amendment supporters are those who argue in other contexts -- such as that of restricting federal court habeas jurisdiction -- that the state courts should be afforded substantial respect in the conduct of their judicial proceedings, the interpretation of their state laws and the application of federal constitutional principles. The alarming intrusion into the state sovereignty that the Federal Marriage Amendment would represent should be cause for vigilance, not simply by those who favor marriage equality for gays and lesbians, but also by those who believe in limited federal power.
There are two salient principles here. First, as I've already mentioned, it is inconsistent with our highest notions of federalism for the federal government to prohibit states from bestowing marital protections on the couples the states wish to deem married. Second, it is fully consistent with our federal system, for the Constitution rightly to be regarded as placing restrictions on forms of discrimination in state family law or intrusions in family privacy. Some examples: the U.S. Supreme Court has told the states they are constitutionally prohibited from banning marriages between persons of different races and that inmates in their prisons must be permitted to marry. The U.S. Supreme Court has also told the states that they must permit married couples to use contraception; that is, to choose not to procreate. In other words, the federal constitution respects the state's primary role in family law matters while recognizing that there are limits on the state's powers and that the Equal Protection Clause and Due Process Clauses impose particular limits.
It should be irrelevant to the state of California, or any other government in this nation, whether most religions believe one thing or another. One of the important lessons of the Supreme Court's recent decision in Lawrence v. Texas is that moral disapproval of a group of people, standing alone, is not sufficient to supply a rational basis for a state law. One, nevertheless, frequently hears the objection that the state should not recognize marriages of same-sex couples because it would somehow infringe on the free exercise of religion by those whose religions disfavor same-sex relationships. The argument apparently is that even in civil life, religious people should be exempt from treating same-sex couples as married. That complaint has no validity under the law.
A few examples make plain why that is a good thing: religious objection to interracial marriages was strong just decades ago and may still be strong in some circles. In addition, some religions might find heterosexual divorce as objectionable as the marriage of a same-sex couple, but California's laws neutrally prohibiting discrimination based on marital status, apply, appropriately, across the board. If same-sex couples are permitted to marry, the First Amendment will protect every religion's right to decide for itself whether to consecrate such marriages, but the freedom of religion protected by the First Amendment is not infringed by civil recognition of families that fall outside what some religions regard to be the ideal form of family.
Far from posing any threat to the institution of marriage, same-sex couples who are seeking the right to marry wish to partake fully in that institution and indeed to bolster it. There is no need to defend marriage against such families and their children, but there is every reason to welcome those families into marriage.
JOHN EASTMAN: The Equal Protection Clause at its core is to guarantee equal treatment for equal things, not equal treatment for unequal things or unequal treatment for equal things. The relevant question here for us is: With respect to the procreation of children, are there any differences between heterosexual and homosexual couples that the law can recognize? To say that there are not, is to invoke disbelief.
I was at a conference a year and half ago at Brigham Young where a staunch advocate of gay marriage began by saying, "What difference does it make to your heterosexual marriage if I enter into a homosexual marriage?" Well, we all understand what difference it makes because marriage has never been understood in this country as simply a matter of fundamental individual right. The reason we have marriage laws as a foundation of society is that as members of the society, we all draw benefits from that institution, in the procreation and rearing of children by the two people in the universe who are most adept at making sure that job gets done right: the natural parents. That can only exist most readily in a heterosexual marriage by the natural parents.
The studies that David and Shannon pointed to earlier that say children do better in heterosexual couples composed of their natural parents; that model doesn't work in any other context. It's not just stepmother and stepfather, it's not just adoptive parents, it's anytime there are anything other than the two natural parents. There's one exception to that, one very close to that is a single mom -- not a single mom who had children out of wedlock and the father was never part of [the family] -- but a single mom whose [husband] died after the kids were born. That father remained kind of an inspiring omnipresence in the home. What would your father think if he were still here? Those children end up pretty close to the par of the heterosexual norm.
They are right. The social science we have on gay couples is relatively in its infancy. There are some early studies out that, quite frankly, are politically driven, methodologically flawed and have been pretty solidly rebutted. But there is no serious study that comes out one way or another on that question, and therefore it's an open question whether there's something about this particular relationship that history has told us is the norm. What are the consequences if we get this wrong and why is it so important to listen? We're living through the consequences of a similar, largely judicially imposed decision of a generation or two ago.
This professor at the BYU conference talked about how important marriage is and how we have fundamentally changed it in our history. What he was talking about was the advent of the no-fault divorce rules in the 1960s and early 1970s, initially driven by court decisions, subsequently adopted by legislatures. The number of out-of-wedlock births, the number of children in prison or in youth facilities, the teenage suicide rates, all of these things have skyrocketed since those decisions in the 1960s.
Has any study proved a direct correlation between those [phenomena] yet? No. But I think we'd be foolish to think there is not some connection between that undermining of the fundamental institution of marriage that for millennia has served as the transmission of cultural norms making those things difficult and the loosening of those bonds. It's that undermining of marriage we're talking about. What we're talking about here is a fundamental transformation in the notion of marriage, a complete severing of the marriage idea from that old connection to procreation, and the rearing of children. We're making it an institution across the board that now means something radically different than it has ever meant before.
Now, that may not have any consequences for us as a society, but I think the no-fault divorce model demonstrates to us that in fact the consequences may be huge and profound, and we as a society absolutely must engage in a debate before we take this step. I don't know where we'll end up at the end of that debate. We may well end up one place and realize 50 years from now we made a grievous mistake on either side, but it is a policy debate, as Judge Starr pointed out, that absolutely requires us to utilize the democratic institutions, not the aristocratic institutions of our government.