Thursday, July 17, 2008

Marriage in California

The California Supreme Court yesterday unanimously denied a petition for extraordinary relief that would have removed the anti-same-sex marriage initiative from the November 2008 ballot (here is the Court's marriage cases site).
The National Center for Lesbian Rights (NCLR) argued in its petition that the initiative, which would strip same-sex couples of the right to marry, is such a significant change in the California Constitution that it constitutes a revision, not a mere amendment, to the Constitution and therefore requires a more deliberative democratic process before being presented to voters. (credit for images) If passed, the measure would strip a fundamental right from a specified minority – which is just the sort of majoritarian action that courts, not electorates, are best positioned to reckon with. Donna Ryu, a clinical professor of law at the University of California, Hastings College of Law, wrote an amicus letter in support of the NCLR that garnered the signatures of many California law professors (including me – and our Legal History Blog colleague, Mary Dudziak). Unfortunately, the Court did not address the merits of the petition.
For me, having recently moved into the democratic chaos of California, this issue has more resonance than most. First, the extended oral argument triggered media coverage and lengthy commentary (Hastings ran a live feed of the hours of argument in a room open to the public, followed by a panel of professors analyzing the case). Then the release of the momentous decision brought dozens of ecstatic phone calls and celebratory emails from family-law professors and friends who support same-sex marriage rights. On the first day of same-sex weddings, City Hall in San Francisco was as tranquil and joyful a place as I’ve ever seen.
But it’s being part of a California lesbian family that makes me feel as if history -- and marriage -- have been thrust upon me, like it or not. Everyone has asked, “so, are you getting married now?!” Yes, I think we are, but I can’t help but be startled by the question. Perhaps I should have spent more time preparing for this moment of liberation; instead, I was figuring out how to build a relationship in spite of legal and political obstacles -- and developing a healthy skepticism about marriage as an institution. From Harriet Jacobs, Incidents in the Life of a Slave Girl (p. 302):

Reader, my story ends with freedom; not in the usual way, with marriage.

(Cross-posted at Legal History Blog)

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