Unwritten Law

That we have reached a point where the Supreme Court of California is willing to accept the institution of gay marriage is a sign of the incredible progress that the gay rights movement has made. While this decision will help promote an outcome that I strongly support, the court’s move is founded on the wrong reasons and reflects an overreach of judicial power that rests on a shaky argument.

In Proposition 22, a state referendum from 2000 that passed with over 60 percent of the vote, voters chose to define marriage as between a man and a woman. Whether or not one agrees with that definition, the court cannot and should not strike it down without a legitimate reason. The role of the judicial branch in protecting minorities extends only to assuring that their constitutional rights are not violated.

What right is being violated by the Court’s decision? According to the Court, the right to “establish… an officially recognized and protected family.” But stated in the opinion, California already recognizes domestic partnerships between same-sex couples that give them “virtually all of the same substantive legal benefits and privileges… [as] a married couple.” Same-sex couples already have the same hospital visitation and inheritance rights as opposite-sex couples. The right in question here is simply a matter of nomenclature: the right for one’s union to be called a “marriage” by the state.

Is this really a guaranteed right? The Court argues that it is because the state grants such a designation to opposite-sex couples, and that denying it to same-sex couples is therefore discriminatory. But discrimination on the basis of sexual orientation is not prohibited under the constitution. Second, the existing law did not prevent anyone from getting married—at least, from getting married according to the state’s definition of marriage, a definition upheld by Proposition 22. Gay people were given the freedom to marry people of the opposite sex—an admittedly unsatisfying right—whereas straight people were not entitled to marry people of the same sex. The mere fact that a measure has different (albeit disproportionate) effects on a particular class does not constitute discrimination unless the measure was passed with discriminatory intent.

Now, to argue that domestic partnerships carry the same substantive legal rights as marriages do is not to argue that the gay rights movement should stop working to bring about legal recognition of gay marriage. Not only will the legal recognition of gay marriage make thousands of gay couples happy, but the acceptance of gay marriage in California could serve as a precedent for its acceptance in other states that do not already have provisions for domestic partnerships, thus helping expand the real legal rights of gay couples nationwide.

Neither of these potential positive effects, however, justifies the Court’s decision. The Supreme Court of California does not exist to serve the interests of a minority or to send a political message. As long as Proposition 22 does not violate constitutional rights, the Court has no choice but to uphold it, no matter what message that sends. Achieving these political goals, and changing the definition of marriage to reflect a new consensus, is not the proper role of the judiciary.

Finally, this decision could have a net negative effect on gay rights. Currently, the California constitution does not mention gay marriage, either to forbid or require its recognition. The Court’s rash decision to interpret this silence as a guarantee of gay rights could provoke the populace to remove the ambiguity: November’s state elections could see a referendum on a constitutional amendment banning same-sex marriage. Unfortunately, by opening a new battlefront on the constitution, the court has provoked such drastic kinds of move that could set back progress on the issue by decades.


Daniel P. Robinson ’10, a Crimson editorial editor, is a social studies concentrator in Kirkland House.

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