I am a practicing civil litigator from Texas. I have also been been speaking, teaching, blogging, and reading about Christian spirituality in the emerging culture for over five years. Aside from my passion for all things Dallas Cowboys, my interests are of a decidedly geek-ish bent: they include technology, quantum physics, PC gaming, and board games.No.
The court, in its 80 page opinion, was well intentioned. It knew that Proposition 8 – which limited the official designation of “marriage” under California law to opposite sex partners – was little more than a collective “raspberry” directed by Evangelicals at gay and lesbian couples, who had long since won the battle to be recognized as domestic partners for legal purposes.
However, when a Federal Court steps in to tell a state what it can and cannot do with its own constitutional mandates, it is a very serious business. Under circumstances like this, it cannot do so unless (1) there is absolutely no rationale for the state action, or (2) the mandate does nothing to advance that interest. The concurring/dissenting opinion of Judge Smith, pretty much spells out my thoughts on the subject.
On a larger scale, my problem with the opinion is this: if the Federal government is not going to recognize a Federal constitutional right to same-sex marriage (which it doesn’t), what business does it have telling California what ought and ought not to be called a “marriage”?
Imagine the conversation this way:
Texas: We don’t think gay and lesbian unions are marriages and won’t allow those unions to enjoy many of the benefits that married couples enjoy under our law.
Federal Courts: No problem. You kids have fun!
Utah: Same here. We think gay unions damage the concept of the traditional family, which we want to protect.
Federal Courts: Sounds good to us. And not really our business, after all!
California: We want to allow gay and lesbian unions to enjoy the benefits of marriage, but we just don’t want to call it “marriage.”
Federal Courts: Shame on you, California! Shame! Have you no respect for the equal protection clause?!
Something in this calculus just doesn’t work for me.
The bigger problem here, I think, is that – long after we decided to get the government out of religion by way of the Bill of Rights – the government continues to be in the business of “marriage,” which is primarily a religious institution. Recognizing a legal relationship between people in a “domestic partnership” of whatever ilk it may be is fine. But I think there are good reasons to leave the concept of defining marriage to individuals and their particular faith (or non-faith) traditions.
Why is the state in the middle of this discussion in the first place?
