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Isn’t it OK for state lawmakers to set up a system in which heterosexual couples marry and gay couples get domestic partnerships?

No. “[P]ermitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage…Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children…Third, because of the widespread disparagement that gay individuals have historically faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of marriage of opposite-sex couples.

“Finally, retaining the designation of marriage exclusively for opposite-sex couples…may well have the effect of perpetuating a more general premise - now emphatically rejected by this state - that gay individuals and same-sex couples are in some respects ‘second-class citizens’ who may, under the law, be treated differently from, and less favorably than, heterosexual couples or opposite-sex couples.”

Now that Family Code sections 300 and 308.5 have been struck as unconstitutional, what is the next best step?

Allow gay couples to marry. When equal-protection violations are found, a court must determine whether the remedy is to extend the treatment equally or withhold it equally. “[T]here can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state’s general legislative policy and preference.”

Excerpts from a dissenting opinion written by Associate Justice Marvin R. Baxter with Associate Justice Ming W. Chin concurring:

How is the majority opinion flawed?

“[T]he majority violates the separation of powers, and thereby commits profound error…

Did the majority opinion overstep its bounds?

Yes. “[A] bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.”

Is there a constitutional right to marriage?

No. “Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.”

Does the court have the right to redefine marriage?

Story Continues →