Same-Sex Marriage: The Right to a Name and More

“Are you married or single?” asks the prospective employer of a young woman who is registered as a domestic partner with another woman. If she answers, “No, I am in a domestic partnership,” she will disclose her sexual orientation, a matter of constitutionally protected privacy that is irrelevant to her job qualifications. If she declines to answer she may lose an employment opportunity.

On May 15, 2008 the California Supreme Court resolved the young woman’s disclosure dilemma and those of all similarly situated same-sex domestic partners by establishing their right to answer, “Married.”

The court’ majority opinion written by Chief Justice George (In re MARRIAGE CASES Number S 147999) is a long discursive journey. It begins with the determination that the law of husband and wife and the law of domestic partnerships are identical. An analysis follows demonstrating that marriage is the foundation for the profoundly important family relationship, the intimacy and child rearing success of which in no way depends on the sexual orientation of its members. After extended legal and constitutional reasoning the Court arrives at the conclusion that the California legislation denying the name “marriage” to identical marital and domestic partner relationships impinges on the fundamental right to marry and unconstitutionally discriminates against same-sex marital relationships.

The Court does not create a new constitutional right to a same-sex marriage. Rather, it establishes that the right to marry applies to both same and opposite sex marital relationships. Relationships that are identical in terms of legal rights and duties deserve “equal dignity” including the same name. Accordingly, state legislation that denies the same name to those relationships denies that equal dignity.

Even more, in an inconspicuous corner of the Chief Justice’s option he restates an established principle that also sheds light on the abortion and separation of church and state debates. Immediately after the San Francisco officials began issuing marriage licenses to same-sex couples, the Proposition 22 Legal Defense Fund filed a suit claiming injury to their ideology and beliefs. But the Court said that ideology, belief, and a strong interest in an issue do not give someone the right to sue in California courts. Unless the Fund could demonstrate an actual injury, their convictions alone do not give them access to a court as a litigating party.

This conclusion clarifies and restates the established principle of a free society – belief and ideology cannot be imposed by law.