More on Marriage

I'm still very pleased about the ruling in the Marriage Cases and anxious for time to read and digest the whole thing. Looks like I'll have to wait until tonight. It really makes me proud to be a Californian and proud to be a lawyer. There will be, and I am sure a substantial number of my Readers are in this number, a lot of people who see this as a anti-democratic slap in the face of the will of the majority. But sometimes, our courts should be willing to stand up to political pressure and speak out for the rights of a minority, because it's the right thing to do. It's what courts are all about, it's what the law is all about. This issue is such a time, and the Court made the right call.

Same-sex licenses apparently are not going to issue until June 15. Why there needs to be time to "plan" and "implement" the court's ruling is beyond me, but there may be more going on at a county clerk's office than meets the eye so I'll give that wrinkle of the court's ruling the benefit of the doubt.

And there is a level of good sense in staying implementation of the ruling if the initiative constitutional amendment does qualify for the ballot and subject the court's ruling to an immediate test of the electorate's approval. In the event that the voters invalidate yesterday's ruling, any marriage license issued between May 15 and November 8 would be retroactively invalidated, which seems even more cruel to the couples -- to let them get married and then take the marriages away.

Some folks, of course, can hardly wait. Ellen DeGeneres and Portia DeRossi, for instance, want to make honest women out of each other as soon as they can. And I can't blame them; they probably would have got married a long time ago if they could have and now that they can, it's understandable that they're anxious.

Somewhere in the endless coverage of the story I read, I think in this article in the Fish Wrapper, there was an uncited estimate that there are about 100,000 same-sex couples in California and about 25% of those couples are raising children. Compare this to the number of opposite-sex couples in California -- 48.5% of Californians were married as of last September. The Census estimates that in 2006, there were about 36.5 million Californians altogether, so that means there are already 8.85 million opposite-sex marriages. Assuming that both statistics are more or less right, and further assuming that each and every same-sex couple in California gets married, there will be a total of 8.95 million marriages. The proportion of opposite-sex marriage licenses to same-sex licenses would be 1.13%. And not every couple wants to get married, whether straight or gay.

I don't see how marriage is threatened. My paralegal reacted viscerally to the news of the ruling saying she thought it was "sick" that some people are gay and "against the Bible" that they want to get married. She grew very frustrated when I reminded her that not every Californian believes in the Bible. She agreed with me that she was still just as married to her husband today as she was the day before the ruling, and she agreed with me that no one was requiring her to marry or have sex with another woman if she found that prospect distasteful. But she found the prospect of any same-sex couple being together distasteful, and my protest that it wasn't any of her business seemed to fall on deaf, defensive ears. So maybe she'll find the idea that the great likelihood is that less than 1% of all marriages in California will be between same-sex couples helps sweetens the pill a little bit.

By the way, I still haven't read much of the opinion -- it's long. But I recall something one of my law professors taught -- "everything good in life is found in the footnotes." Footnote 24 of the majority opinion, in particular, explains why California's Domestic Partnership Law was not the same thing as marriage, even excluding the issue of Federal rights. Some of the differences are very technical and of little practical application, but it still demonstrated that "separate but equal" is inherently unequal.