Marriage: There is No Equal
California Justices Overstep Legal Bounds

By Toni Meyer, Sr. Research Analyst - NJ Family Policy Council

Imagine what New Jersey would be like if anyone wishing to do so could enter into a legal marriage based on the simple qualification that they are in "a loving, committed relationship" and are willing to say "I do". Here are some relationships that could qualify under that definition: three or more individuals (polygamy/polyamory: like the cult group recently arrested in Texas), a brother and a sister (siblings sued for incestuous marriage in Germany last year) a person and their beloved animal (Missouri man tried to marry his horse 1999), an adult and a minor child (could be proposed by the North American Man-Boy Love Association).

These disturbing examples illustrate why the basis for marriage must never be reduced to sexual preference; no matter how "loving or committed" the relationship. Marriage is a public virtue that responsibly regulates human sexuality, brings the complimentary nature of man and woman together in a cooperative and mutually beneficial relationship, and provides mothers and fathers to their children for the proper development of the next generation. There is no equal to one-man one-woman marriage. No other relationship can prove equality in how it serves the best interest of children, and the general welfare of the state. Therefore, no other relationship deserves equal access to marriage.

Nevertheless, four out of six California Supreme Court justices have now followed the lead of the Massachusetts court by rewriting their state's marriage law to include same-sex couples. Attorney Demetrios Stratis, Chairman of the NJ Legal Resource Council, and member of the national Alliance Defense Fund explains, "The California justices claim that any law limiting marriage to one man and one woman is unconstitutional, based on equal protection law found in their constitution. However, in applying that law to marriage they are making an unlawful leap, redefining the institution of marriage without the appropriate involvement of the Legislature."

The two dissenting justices Baxter and Chin, wrote, ".the majority violates the separation of powers, and thereby commits profound error. I cannot join this exercise in legal jujitsu, by which the Legislature's own weight is used against it to create a constitutional right., defeat the People's will, and invalidate a statute otherwise immune from legislative interference". The court used the fact that the Legislature enacted same-sex domestic partner benefits as rationale to create a non-existent constitutional right to marriage. They also invalidated the law voted in by the people in 2000, limiting marriage to one man and one woman.

Twenty-two states are now vulnerable to legal chaos as a result of the California court's judicial activism. In fact, attorneys general from nine states filed friend-of-the-court briefs with the California Supreme Court asking them to delay their decision because California law allows marriage licenses to be issued to out-of-state same-sex couples.

The wisest step for the California Supreme Court would have been to stay their ruling, but their June 4th decision to deny a stay reveals their political agenda. Judges acting as judges and not as legislators would have granted the stay, if only to avoid having same-sex couples marry and then having a constitutional marriage amendment - which could pass in November - render them invalid. Moreover, an appeal filed by the Liberty Counsel points out that their decision also facilitates legal polyamory. It seems in their haste, the court neglected to clarify that those entering a same-sex "marriage" are not only required to be unmarried and over 18, but also not concurrently in a domestic partnership or civil union. If the court's ruling goes into effect without modification on June 16th, individuals would be free to create polyamorous relationships by entering into a same-sex "marriage" with someone other than their current domestic partner. This would not only wreak havoc in California creating problems with community property, parental rights, custody, visitation, and alimony, but also in New Jersey, Vermont or Connecticut. Individuals from those states currently in a civil union could come to California and enter into same-sex "marriage with someone other than their civil union partner.

The wisest step for NJ citizens and our Legislature is to pass a constitutional amendment preserving marriage between one man and one woman now, and not wait for such a legal mess to happen here.

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