It is hardly surprising that deeply politicized issues, such as the same-sex marriage debate, become caricaturized in ways that unfortunately function to marginalize the fundamental legal and democratic principles governing American society. This is true of both federal and state issues. The same-sex marriage debate in California, an especially contentious controversy to be sure, is illustrative of the way in which well-established legal and democratic principles become ignored in order to impose a particular personal or ideological preference at the expense of legal logic and democratic legitimacy.
This is not meant to suggest that same-sex marriage is undesirable, indeed a review of the relevant legal scholarship and academic literature strongly suggests that same-sex marriage will become institutionalized at some point in the future, but instead meant to point out that the means by which same-sex marriage is ultimately realized is important to the underlying legitimacy of America’s legal and democratic systems.
This essay therefore argues that same-sex marriage should be advanced through state legislation, based on a series of logical reasoning steps, rather than through unsupportable assertions that a right to same-sex marriage exists in either the federal or state constitutions at this point in time. As an initial matter, in order to support the thesis that state legislation is the best means for effecting same-sex marriage in California, it is necessary to examine how the same-sex issue has been approached in California.
The impetus, strangely enough, came from private businesses rather than from official state action. Specifically, some private businesses began to offer special economic benefits to employees with same-sex partners in an effort to recruit and to retain valuable employees who were homosexual. It is well-established, for instance, that” Today more than 7,400 companies offer equal benefits to same-sex partners of their employees.
Those companies, however, may find themselves in legal limbo as states pass conflicting laws regarding same-sex couples” (Barkacs 34). It is therefore fair to conclude that the same-sex debate from a legal perspective has been built upon the voluntary decisions by businesses to extend same-sex partnership benefits in the private sector. Problems have arisen, however, when groups have sought to create state legislation and state constitutional amendments recognizing same-sex marriage.
In California, for example, the voters voted in favor of a ban on same-sex marriage; as a result, efforts have been made to enact a constitutional amendment creating an explicit right to same-sex marriage (“California High Court Will Review Prop. 8 Ban on Same-Sex Marriage” 20). California thus faces a democratic majority which is against same-sex marriage and a legislative framework in which it cannot yet be said that the California or the federal constitution create an explicit constitutional right to same-sex marriage. These problems in California highlight two key problems.
First, despite some assertions to the contrary by same-sex advocates and the popular media, there is no explicit right to same-sex marriage in either the federal constitution or in the California constitution. A minority of scholars argues that a constitutional right to same-sex marriage might be based on a privacy right (Hohengarten 1496); on the other hand, this reasoning is extraordinarily attenuated and is likely to increase resistance to same-sex marriage rather than acceptance because it would require an interpretation of the constitution that is typically associated with activist judges.
Some states, such as Massachusetts, have found the denial of same-sex marriages to constitute a denial of equal protection but this backhanded reasoning process does not eliminate the fact that there is no explicit right to same-sex marriage in the California constitution. The Massachusetts Supreme Court, for example, held that “the state’s traditional definition of marriage, which consisted exclusively of one man and one woman, was ‘irrational’ and discriminated against gays and lesbians so invidiously that it violated state equal protection guarantees” (Severino 941).
This decision has been severely criticized as being a result of judicial activism and has, perhaps, done more harm than good to the cause of same-sex marriage because the ruling is deemed a type of judicial authoritarianism in which the political and democratic will of the majority has been thwarted by the beliefs of a few privileged Supreme Court justices.
Such a route would not be beneficial in California, where the majority opposes same-sex marriage, and advocacy efforts might be better spent trying to persuade the California voters to change their minds. The second problem, in addition to the lack of any explicit reference to same-sex marriage in the federal or California constitutions, is the danger that democratic free will can be subverted by imposing same-sex marriage from above despite the fact that the California voters have clearly and unequivocally voted against laws in favor of same-sex marriage.
To then impose same-sex marriage through judicial fiat would do more harm to the same-sex marriage cause because the law imposed in an authoritarian manner would be viewed as contrary to the democratic will of the people of California and therefore as illegitimate. A better approach for those favoring same-sex marriage in California would be to secure a legitimate democratic victory based upon several well-established principles of American governance.
One of the more persuasive arguments in favor of same sex marriage is that “in terms of culture and symbolism as opposed to benefits and responsibilities, the ongoing controversy over same-sex marriage and marriage equality is fundamentally a desecration controversy concerning a sacred, intangible ritual and status” (Poirier 355); in effect, the cultural tradition opposed to same-sex marriage is gradually becoming less dominant in California and it is fair to believe that the evolving cultural values will embrace or tolerate rather than condemn same-sex marriage.
This evolutionary pattern, however, will probably not occur as smoothly if new cultural values regarding marriage are imposed judicially rather than enacted legislatively. Indeed, in terms of cultural changes occurring in the United States, it has been noted that “The definition, exclusive status, and legal benefits of marriage may become one of this decade’s most important domestic policy issues in the United States” (Wardle 771).
Debate is healthy, so long as it is objective and respectful, and judicial activism will function to terminate the debate and generate unnecessary hostilities and render any judicial affirmations of same-sex marriage suspect and potentially illegitimate. California has well-established legislative procedures and these should be followed. In the final analysis, the same-sex marriage debate is complicated by the fact that opposing sides both have genuine moral and intellectual approaches to the issues which unfortunately conflict.
Democratic institutions, particularly the legislature when the constitution is silent, are designed to resolve such conflicts. At the current time, the California citizenry opposes same-sex marriage though not by an insurmountable majority. If the past few decades are any indication, then the trend would appear to be in favor of allowing same-sex marriage at some point in the future. In order to safeguard the integrity of the Democratic process, same-sex advocates would be better advised to continue lobbying the people at the grassroots level rather than demanding a California Supreme Court decision.