The California Supreme Court and Same Sex Marriage: Natural and Civil Rights

The California Supreme Court invented "the right to marry," a natural right that doesn't exist in the US.

The California Supreme Court majority opinion which declared the 2000 marriage definition law unconstitutional was not an opinion based on any legal precedent, nor was it argued with any reference to civil rights. (This includes any reference to the 14th amendment to the US Constitution which guarantees equal protection. Equal protection does not apply to a definition of marriage.) Chief Justice Ronald M. George, instead of arguing on the basis of civil rights, which he well knew would never be accepted, argued for a new, made up definition of a fundamental (or inalienable) right - the “right to marry.”

With the 2008 ruling, the California Supreme Court didn’t argue that homosexual marriage was a civil right. The problem with the court decision is that there is no "fundamental right to marry" either. Justice George had to make up a right in order for his opinion to have any chance of viability when brought to a court vote. He hoped that his interpretation (i.e., his made-up fundamental right) would become accepted within the state, and hence would open the door to redefine marriage into something it is not.

The gay community does not understand the court’s nuance, or chooses to ignore it, instead hijacking the ideals and verbiage of the civil rights movement to promote the made-up "right to marry" as a civil right. However, not even the California Supreme Court considered this a civil rights issue.

A second, related point, needs to be addressed. Gays either do not understand what a civil right is or choose to ignore what a civil right is. By definition, a civil right is a right that is expressed by constitution or by law. For example, the first amendment to the US Constitution indicates several civil rights. One of these is the civil right of religion to free exercise (without government interference). That is a constitutional civil right, but it tends to get lost in the flames of fury leveled against religion. Another civil right from the First Amendment is free speech, allowing everyone, even religious people to speak up and be heard in their beliefs about how government ought to be run (another point lost on the anti-religious).

When the California voters created a constitutional amendment to define marriage between a man and a woman, they followed the precedent of 27 other states which have similar amendments. During the same election, Arizona and Florida added constitutional amendments defining marriage. (Here’s the part that upsets gay activists the most.) By creating a constitutional amendment, Californians created a civil right. This civil right protects California's constituional understanding of marriage by defining it as a union between one man and one woman. Yet here’s the real kicker. If the California Supreme Court decides that the marriage amendment, now a civil right is unconstitutional, you guessed it, the court will be taking away the civil rights of monogamous (meaning one man and one woman who remain faithful to each other in marriage) people to preserve marriage.