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Return to the gay marriage issue page California has been one of the most active battlegrounds in the same-sex marriage debate.

Four years later, following the legalization of gay marriage in Massachusetts, San Francisco began issuing marriage licenses to same-sex couples, a move that was quickly rebuked by the state Supreme Court. And in September , the California Assembly became the first state legislature in the nation to deliberately approve same-sex marriages.

Governor Arnold Schwarzenegger ultimately vetoed the bill on the basis of Proposition Before we begin, I also want to thank several organizations that have acted as our co-sponsors. This is a topic being discussed nationally and state by state. We are going to focus on the California case and broaden the debate from there. First, some background on the case for those who might not be familiar with it.

In , six cases were filed in trial courts. They were coordinated, which I take it is the California term for consolidated, and hearings were held. It held that there was no rational basis for that section of the code, and that the code discriminated based on sex, and that it violated a fundamental right to marry without serving a compelling state interest. The state appealed from that decision and the case was then heard in the Court of Appeal, First Appellate District. In October, , that court reversed and held that there was no violation of the equal protection, due process, privacy or free expression guarantees of the California constitution.

A petition for rehearing in that court was denied, and subsequently a petition for review was filed in the California Supreme Court. Our format today will be as follows. Our first speaker is Shannon Price Minter. Shannon is the legal director for the National Center for Lesbian Rights. Our second speaker is the Honorable Kenneth W. Our third speaker is David Codell. Last but not least, we will conclude with Dr. He is a professor of law and associate dean at Chapman Law School.

With that, if you could start us off, Mr. Thank you so much. I want to thank the Federalist Society and the American Constitutional Society as well as our host, the Pew Forum, for this truly remarkable opportunity.

Codell, and I represent same-sex couples who are seeking the right to marry in a case that is currently before the California Supreme Court; Judge Starr and Professor Eastman have weighed in on the other side of that case.

Despite appearances, however, this ultimately is not a partisan issue; it is not an issue about conservative versus liberal views. Some of the most persuasive voices supporting marriage for same-sex couples are those of conservatives such as David Brooks and Andrew Sullivan.

Many of the judges who have ruled in favor of same-sex couples have been Republican appointees. And if I can speak personally just for a moment, my parents, who are arch-conservative Texas Republicans — laughter — have over time come to embrace full equality for lesbian and gay couples including marriage.

In short this is not an issue that lends itself to simple political or ideological labels. It is ultimately a human issue. The reality, as we know from the most recent federal census, is that more than , same-sex couples live in California. Those couples live in every single county in this state, and we know that more than 70, children in California have lesbian and gay parents.

How do we deal with this reality? These are real families with real children. How should the law respond? Very often, however, those who oppose marriage for same-sex couples ignore this human reality. We hear many arguments about promoting a certain version of the so-called optimal family and arguments about channeling heterosexual procreation into marriage, but meanwhile, the simple reality is there are hundreds of thousands of same-sex couples, and many of them are raising children.

In representing these families before the California courts, Mr. Codell and I have argued that the state is constitutionally required to treat these families equally. We believe this is required by the equal protection clause of our state constitution, which prohibits government discrimination based on sexual orientation and gender and any type of government discrimination that lacks a rational basis. Unlike the federal Constitution, the California Constitution expressly identifies privacy as an inalienable right, and the voters in this state amended our state constitution in for that very purpose.

Under our state privacy clause, the California Supreme Court has looked not only to history and tradition, but also to evolving laws and policies, changing social conditions and, generally, our increased appreciation for the importance of protecting human dignity for all people.

More importantly, we hope the California Supreme Court will see it that way as well. In the meantime, however, there is one point on which all parties in this case agree, and that is the importance of marriage.

In , the California Supreme Court became the first in the country to strike down laws that bar interracial marriage, and they held in that case that marriage is a basic civil right.

Supreme Court has described marriage as a vital personal right, essential to the orderly pursuit of happiness. Some cultures, of course, arrange marriages and laws that restrict the right to marry based on religion or cast or creed are taken for granted and accepted. Judge Kramer went on to hold that there is no legitimate reason in this case. One of the couples in the case, Del Martin and Phyllis Lyon, has been together for more than 54 years. When one of them dies, the other will not be eligible for [the] Social Security benefits [of the deceased partner].

If either has to go into a nursing home or long-term care, the other will almost certainly lose their family home, which would not be the case if they were a married couple. The federal Office of General Accounting has identified more than 1, rights and benefits that are available only to married people.

Despite their five-plus decades of devotion to one another, Del Martin and Phyllis Lyon are not entitled to any of those. The harms inflicted on lesbian and gay couples by being excluded from marriage are very real, and there is no substitute for marriage. While domestic partnership provides some protection, it falls short of genuine equality by any reasonable measure.

In closing, I want to respond quickly to two arguments we often hear on the other side. The first is that marriage is not just an individual right, but that it also serves important social purposes. Dean Starr has written: Society benefits when couples marry and that is true regardless of their sexual orientation. The second argument we often hear is that studies show children benefit from being raised by married heterosexual parents, and that children are harmed by being raised in alternative families.

In fact, however, every single one of these studies has looked at single parent families, divorced families and step-parent families.

There is not one study showing children are harmed in any way by having lesbian or gay parents. What matters is that children are raised in a stable, loving environment. Justice Scalia has said courts can take no better measure to assure that laws will be just than to require the laws be equal in operation.

Nothing we do is more important than forging human bonds, creating families and passing on love and, hopefully, wisdom to our children. My thanks, too, to the judges for leaving their chambers and courtrooms to be with us for this conversation. This is obviously not just a manifestly important issue, but also, as Shannon has just so eloquently put it, a profoundly human issue.

My happy role is serving as co-counsel to a consortium of very diverse religious organizations, and let me identify them as they are identified in the amicus brief that was filed in the California Court of Appeal at the earlier phase, which is now, as Dean noted, in the California Supreme Court. My points are several. Shannon made a wonderful and powerful statement that this is not a political issue.

Stephen Breyer — I can refer to him as Stephen Breyer in his extrajudicial capacity — in his charming book, Active Liberty , which I commend to one and all, lifts up the vision of the judiciary, articulated brilliantly by Learned Hand, viewed as a judicial conservative, in his Holmes Lectures at the Harvard Law School, that no matter how brilliant the judges are — and we have brilliant judges here — [they must be] respectful — deeply so — of the democratic process.

Let me also make the point, as a bookmark point, that Learned Hand was not an originalist. It was not his vision that the founding generation had a particular perspective on certain issues including the kind of issues that now arrest our attention; rather it was his view that we live in a representative democracy, and we must take that seriously.

We must be extraordinarily deferential to the people in community, and that is what Stephen Breyer has said in Active Liberty. It is, in fact, the very nature of our enterprise to gather to be in conversation together, but it is likewise the practical and prudential way to secure agreement by the people. Sullivan— and two sentences later, Justice Brennan also said that conversation is frequently going to make us uncomfortable. But what Justice Brennan and others lifted up and what Justice Breyer is lifting up — from the perspective of a centrist, moderate, or however you want to characterize him — is allowing the conversation to go on.

Do not stop the conversation by suggesting that the Constitution of California, which is extraordinarily populist in its nature — If there is one overriding theme that we see in the California Constitution, and people here in this audience know it far better than I do, but as an outsider returning to California, looking at the California Constitution, [I find it to be] deeply concerned about the voice of the people.

The people will be heard, and they will be heard directly, not through intermediaries and certainly not through relatively unaccountable intermediaries. This is a vision that should unite virtually everyone of goodwill across ideological lines, and I want to place another bookmark before you. I say unabashedly I admire the Holmes dissent because it set forth a very simple view in those five paragraphs — Manny, how many paragraphs? I just asked a non-admirer of the dissent.

With respect to this specific issue of same-sex marriage, there are voices — and Dr. Eastman has spoken for these voices of social scientists — who were saying in the spirit of John Adams and Louis Brandeis: Please let us study this issue.

He talked about the Family Code. Imagine, if you would, the free speech code. Imagine the free press code. We recoil at the idea of a code, but go to the California Family Code. See how elaborate it is, including who one can marry. What we do know is there are profound limitations on state power, and we should be thankful for those limitations, especially with respect to the idea of invidious discrimination and seizing and hijacking the marriage relationship in order to achieve apartheid-type values.

Now the international conversation is underway, and this is my final point. Friends, look at the list of countries that have this conversation actively underway, but have not embraced same-sex marriage. A very small minority of countries do in fact allow it. And why is that? My colleague Shannon Minter has already set forth some of the essential arguments we have [presented] in the California litigation. I want to briefly introduce a few federal topics and then discuss the relationship of religion to our topic today.

First, I want to offer a few words about recent efforts to enact the so-called Federal Marriage Amendment to the U.

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Arnold area legal sex partners

Return to the gay marriage issue page California has been one of the most active battlegrounds in the same-sex marriage debate. Four years later, following the legalization of gay marriage in Massachusetts, San Francisco began issuing marriage licenses to same-sex couples, a move that was quickly rebuked by the state Supreme Court. And in September , the California Assembly became the first state legislature in the nation to deliberately approve same-sex marriages. Governor Arnold Schwarzenegger ultimately vetoed the bill on the basis of Proposition Before we begin, I also want to thank several organizations that have acted as our co-sponsors.

This is a topic being discussed nationally and state by state. We are going to focus on the California case and broaden the debate from there. First, some background on the case for those who might not be familiar with it. In , six cases were filed in trial courts. They were coordinated, which I take it is the California term for consolidated, and hearings were held. It held that there was no rational basis for that section of the code, and that the code discriminated based on sex, and that it violated a fundamental right to marry without serving a compelling state interest.

The state appealed from that decision and the case was then heard in the Court of Appeal, First Appellate District. In October, , that court reversed and held that there was no violation of the equal protection, due process, privacy or free expression guarantees of the California constitution.

A petition for rehearing in that court was denied, and subsequently a petition for review was filed in the California Supreme Court. Our format today will be as follows. Our first speaker is Shannon Price Minter. Shannon is the legal director for the National Center for Lesbian Rights. Our second speaker is the Honorable Kenneth W. Our third speaker is David Codell. Last but not least, we will conclude with Dr. He is a professor of law and associate dean at Chapman Law School.

With that, if you could start us off, Mr. Thank you so much. I want to thank the Federalist Society and the American Constitutional Society as well as our host, the Pew Forum, for this truly remarkable opportunity. Codell, and I represent same-sex couples who are seeking the right to marry in a case that is currently before the California Supreme Court; Judge Starr and Professor Eastman have weighed in on the other side of that case.

Despite appearances, however, this ultimately is not a partisan issue; it is not an issue about conservative versus liberal views. Some of the most persuasive voices supporting marriage for same-sex couples are those of conservatives such as David Brooks and Andrew Sullivan.

Many of the judges who have ruled in favor of same-sex couples have been Republican appointees. And if I can speak personally just for a moment, my parents, who are arch-conservative Texas Republicans — laughter — have over time come to embrace full equality for lesbian and gay couples including marriage.

In short this is not an issue that lends itself to simple political or ideological labels. It is ultimately a human issue. The reality, as we know from the most recent federal census, is that more than , same-sex couples live in California. Those couples live in every single county in this state, and we know that more than 70, children in California have lesbian and gay parents. How do we deal with this reality? These are real families with real children.

How should the law respond? Very often, however, those who oppose marriage for same-sex couples ignore this human reality. We hear many arguments about promoting a certain version of the so-called optimal family and arguments about channeling heterosexual procreation into marriage, but meanwhile, the simple reality is there are hundreds of thousands of same-sex couples, and many of them are raising children.

In representing these families before the California courts, Mr. Codell and I have argued that the state is constitutionally required to treat these families equally. We believe this is required by the equal protection clause of our state constitution, which prohibits government discrimination based on sexual orientation and gender and any type of government discrimination that lacks a rational basis.

Unlike the federal Constitution, the California Constitution expressly identifies privacy as an inalienable right, and the voters in this state amended our state constitution in for that very purpose. Under our state privacy clause, the California Supreme Court has looked not only to history and tradition, but also to evolving laws and policies, changing social conditions and, generally, our increased appreciation for the importance of protecting human dignity for all people.

More importantly, we hope the California Supreme Court will see it that way as well. In the meantime, however, there is one point on which all parties in this case agree, and that is the importance of marriage. In , the California Supreme Court became the first in the country to strike down laws that bar interracial marriage, and they held in that case that marriage is a basic civil right. Supreme Court has described marriage as a vital personal right, essential to the orderly pursuit of happiness.

Some cultures, of course, arrange marriages and laws that restrict the right to marry based on religion or cast or creed are taken for granted and accepted. Judge Kramer went on to hold that there is no legitimate reason in this case. One of the couples in the case, Del Martin and Phyllis Lyon, has been together for more than 54 years. When one of them dies, the other will not be eligible for [the] Social Security benefits [of the deceased partner].

If either has to go into a nursing home or long-term care, the other will almost certainly lose their family home, which would not be the case if they were a married couple. The federal Office of General Accounting has identified more than 1, rights and benefits that are available only to married people.

Despite their five-plus decades of devotion to one another, Del Martin and Phyllis Lyon are not entitled to any of those. The harms inflicted on lesbian and gay couples by being excluded from marriage are very real, and there is no substitute for marriage.

While domestic partnership provides some protection, it falls short of genuine equality by any reasonable measure. In closing, I want to respond quickly to two arguments we often hear on the other side. The first is that marriage is not just an individual right, but that it also serves important social purposes.

Dean Starr has written: Society benefits when couples marry and that is true regardless of their sexual orientation. The second argument we often hear is that studies show children benefit from being raised by married heterosexual parents, and that children are harmed by being raised in alternative families.

In fact, however, every single one of these studies has looked at single parent families, divorced families and step-parent families. There is not one study showing children are harmed in any way by having lesbian or gay parents.

What matters is that children are raised in a stable, loving environment. Justice Scalia has said courts can take no better measure to assure that laws will be just than to require the laws be equal in operation. Nothing we do is more important than forging human bonds, creating families and passing on love and, hopefully, wisdom to our children.

My thanks, too, to the judges for leaving their chambers and courtrooms to be with us for this conversation. This is obviously not just a manifestly important issue, but also, as Shannon has just so eloquently put it, a profoundly human issue. My happy role is serving as co-counsel to a consortium of very diverse religious organizations, and let me identify them as they are identified in the amicus brief that was filed in the California Court of Appeal at the earlier phase, which is now, as Dean noted, in the California Supreme Court.

My points are several. Shannon made a wonderful and powerful statement that this is not a political issue. Stephen Breyer — I can refer to him as Stephen Breyer in his extrajudicial capacity — in his charming book, Active Liberty , which I commend to one and all, lifts up the vision of the judiciary, articulated brilliantly by Learned Hand, viewed as a judicial conservative, in his Holmes Lectures at the Harvard Law School, that no matter how brilliant the judges are — and we have brilliant judges here — [they must be] respectful — deeply so — of the democratic process.

Let me also make the point, as a bookmark point, that Learned Hand was not an originalist. It was not his vision that the founding generation had a particular perspective on certain issues including the kind of issues that now arrest our attention; rather it was his view that we live in a representative democracy, and we must take that seriously.

We must be extraordinarily deferential to the people in community, and that is what Stephen Breyer has said in Active Liberty. It is, in fact, the very nature of our enterprise to gather to be in conversation together, but it is likewise the practical and prudential way to secure agreement by the people. Sullivan— and two sentences later, Justice Brennan also said that conversation is frequently going to make us uncomfortable.

But what Justice Brennan and others lifted up and what Justice Breyer is lifting up — from the perspective of a centrist, moderate, or however you want to characterize him — is allowing the conversation to go on. Do not stop the conversation by suggesting that the Constitution of California, which is extraordinarily populist in its nature — If there is one overriding theme that we see in the California Constitution, and people here in this audience know it far better than I do, but as an outsider returning to California, looking at the California Constitution, [I find it to be] deeply concerned about the voice of the people.

The people will be heard, and they will be heard directly, not through intermediaries and certainly not through relatively unaccountable intermediaries. This is a vision that should unite virtually everyone of goodwill across ideological lines, and I want to place another bookmark before you. I say unabashedly I admire the Holmes dissent because it set forth a very simple view in those five paragraphs — Manny, how many paragraphs? I just asked a non-admirer of the dissent.

With respect to this specific issue of same-sex marriage, there are voices — and Dr. Eastman has spoken for these voices of social scientists — who were saying in the spirit of John Adams and Louis Brandeis: Please let us study this issue. He talked about the Family Code. Imagine, if you would, the free speech code. Imagine the free press code. We recoil at the idea of a code, but go to the California Family Code. See how elaborate it is, including who one can marry.

What we do know is there are profound limitations on state power, and we should be thankful for those limitations, especially with respect to the idea of invidious discrimination and seizing and hijacking the marriage relationship in order to achieve apartheid-type values. Now the international conversation is underway, and this is my final point. Friends, look at the list of countries that have this conversation actively underway, but have not embraced same-sex marriage.

A very small minority of countries do in fact allow it. And why is that? My colleague Shannon Minter has already set forth some of the essential arguments we have [presented] in the California litigation.

I want to briefly introduce a few federal topics and then discuss the relationship of religion to our topic today. First, I want to offer a few words about recent efforts to enact the so-called Federal Marriage Amendment to the U.

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5 Comments

  1. First, some background on the case for those who might not be familiar with it. There is no reason to enact a federal amendment saying that no state in this country can permit same-sex couples that live within those states from marrying.

  2. A number of states are in conversation with respect to different tiers called the multi-tiered marriages, covenant marriages. My points are several.

  3. Instead, both purported to apply rational basis review, the lowest level of scrutiny that the courts give to legislative judgments.

  4. And why is that? What he was talking about was the advent of the no-fault divorce rules in the s and early s, initially driven by court decisions, subsequently then adopted by legislatures.

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