(H/T – Dad29)
Just to refresh your memory, here is Section 13 of Article XIII of the Wisconsin constitution:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
The California Supreme Court is currently considering a consolidated set of cases where the city of San Francisco and assorted nuts want to force California to recognize gay “marriages”. Before I get to the truly-mind-blowing part of the post, here’s a short history cribbed from VoteYesMarriage.com, an outfit seeking to enshrine marriage into California’s constitution:
- In 2000, voters approved Proposition 22, which became Family Code section 308.5, which read in entirety, “Only marriage between a man and a woman is valid or recognized in California.” Do note that, other than a grammatical anomaly and the substitution of “this state” for “California”, that is The First Sentence. Also, do note that the Family Code is part of California’s statutes, not its constitution.
- Between 2003 and 2005, the California Legislature systematically extended every right traditionally reserved for marriage to same-sex couples under the banner “domestic partnerships”, including forcing private entites who either have government contracts or provide insurance to provide full married benefits to same-sex couples.
- In 2004, San Francisco issued same-sex “marriage certificates” in violation of state law. While California’s Supreme Court voided it, it invited a challenge to Family Code 308.5 on “constitutional” grounds, which was promptly issued.
- In 2005, the California courts held those extensions “constitutional” by declaring that Prop 22/Family Code 308.5 only protected the name “marriage” and not any rights associated it, and then extended the force-feeding of same-sex benefits to all entities that provide public accomodations.
- In 2006, an appellate court ruled that Family Code 308.5 did prohibit same-sex “marriage”. That case is part of a consolidated set of marriage cases currently before the California Supreme Court.
Even before we get to the bombshell, we have “(a) legal status identical or substantially similar to that of marriage” created in California. Now, on to the bombshell.
On June 20, the California Supreme Court asked the interested parties in the consolidated marriage cases referenced above to answer four questions:
- What differences in legal rights or benefits and legal obligations or duties exist under current California law affecting those couples who are registered domestic partners as compared to those couples who are legally married spouses? Please list all of the current differences of which you are aware.
- What, if any, are the minimum, constitutionally-guaranteed substantive attributes or rights that are embodied within the fundamental constitutional “right
to marry” that is referred to in cases such as Perez v. Sharp (1948) 32 Cal.2d 711, 713-714? In other words, what set of substantive rights and/or obligations, if any, does a married couple possess that, because of their constitutionally protected status under the state Constitution, may not (in the absence of a compelling interest) be eliminated or abrogated by the Legislature, or by the people through the initiative process, without amending the California Constitution?
- Do the terms “marriage” or “marry” themselves have constitutional significance under the California Constitution? Could the Legislature, consistent with the California Constitution, change the name of the legal relationship of “marriage” to some other name, assuming the legislation preserved all of the rights and obligations that are now associated with marriage?
- Should Family Code section 308.5 – which provides that “[o]nly marriage between a man and a woman is valid or recognized in California” – be interpreted to prohibit only the recognition in California of same-sex marriages that are entered into in another state or country or does the provision also apply to and prohibit same-sex marriages entered into within California? Under the Full Faith and Credit Clause and the Privileges and Immunities Clause of the federal Constitution (U.S. Const., art. IV, ?? 1, 2, cl.1), could California recognize same-sex marriages that are entered into within California but deny such recognition to same-sex marriages that are entered into in another state? Do these federal constitutional provisions affect how Family Code section 308.5 should be interpreted?
Answer #1 summary (identical in both briefs) – There Are No Differences Between the Legal Rights and Benefits or the Legal Obligations and Duties Provided to Married Couples and Those Provided to Registered Domestic Partners Under California Law. Mostly noted above, though Brown’s brief took the added step of noting that even if “marriage” were granted to same-sex couples, it would not be recognized under federal law or by other states.
To that, I say, “Only until the Ninth Circus gets a hold of it.”
Answer #2 summary (Brown’s brief) – Although a Compelling Justification Would Be Needed Before the State Could Forbid a Man and a Woman from Entering into the Essential Relationship We Know as Marriage, Married Couples Do Not Possess Any Substantive Right Or Obligation Under Californa Law That Could Not Be Eliminated by Legislative Action Supported by a Rational Basis. (Schwarzenegger’s brief summary begins after the comma) Of particular note is the last sentence of both briefs (Brown’s brief quoted; Schwarzenegger’s brief essentially identical) – “But the State submits that, except for this essential ability to choose and declare one’s life partner in a reciprocal and binding contractual committment of mutual support, any of the statutory rights and obligations that are afforded exclusively to married couples in California could be aborgated or eliminated by the Legislature or the electorate for any rational legislative purpose.”
In short, the only guaranteed right of marriage in California is to choose one’s “life partner” (the phrase is used in both briefs). Before I get to the item that makes even this moot in the eyes of the executive branch of California’s government, I will note that Schwarzenegger urges in his answer to the fourth question that Family Code section 308.5 be interpreted to mean that same-sex “marriages” not be recognized regardless of where they were entered into.
Answer #3 summary (identical in both briefs) – No Constitutional Provision Would Prohibit Changing the Name of the Marriage Relationship to Some Other Name. And thus “marriage” and Proposition 22/Family Code section 308.5 die. I will note that Schwarzenegger’s brief notes that the reference to “marriage” in Prop 22 might mean that any change in the name could require a vote of the people.
In short, without The Second Sentence, and without the protection of being part of Wisconsin’s constitution, The First Sentence would have been utterly meaningless, as it would neither have defended the institution of marriage nor the name of marriage itself.