from Last Week's Court Ruling Against Marriage Discrimination...
Marriage in the United States has always been a civil matter.
Civil authorities may permit religious leaders to solemnize
marriages but not to determine who may enter or leave a civil
marriage. Religious leaders may determine independently whether
to recognize a civil marriage or divorce but that recognition
or lack thereof has no effect on the relationship under state
A person may not marry unless he or she has the legal capacity
to consent to marriage.
California, like every other state, has never required that
individuals entering a marriage be willing or able to
When California became a state in 1850, marriage was understood
to require a husband and a wife.
The states have always required the parties to give their free
consent to a marriage. Because slaves were considered property
of others at the time, they lacked the legal capacity to consent
and were thus unable to marry. After emancipation, former slaves
viewed their ability to marry as one of the most important new
rights they had gained.
Many states, including California, had laws restricting the
race of marital partners so that whites and non-whites could
not marry each other.
Racial restrictions on an individual's choice of marriage partner
were deemed unconstitutional under the California Constitution
in 1948 and under the United States Constitution in 1967. An
individual's exercise of his or her right to marry no longer
depends on his or her race nor on the race of his or her chosen
Under coverture, a woman's legal and economic identity was subsumed
by her husband's upon marriage. The husband was the legal head
of household. Coverture is no longer part of the marital bargain.
Marriage between a man and a woman was traditionally organized
based on presumptions of a division of labor along gender lines.
Men were seen as suited for certain types of work and women
for others. Women were seen as suited to raise children and
men were seen as suited to provide for the family.
The development of no-fault divorce laws made it simpler for
spouses to end marriages and allowed spouses to define their
own roles within a marriage.
In 1971, California amended Cal Civ Code ß 4101, which
had previously set the age of consent to marriage at twenty-one
years for males and eighteen years for females, to read "[a]ny
unmarried person of the age of 18 years or upwards, and not
otherwise disqualified, is capable of consenting to and consummating
California has eliminated marital obligations based on the gender
of the spouse. Regardless of their sex or gender,marital partners
share the same obligations to one another and to their dependants.
As a result of Proposition 8, California nevertheless requires
that a marriage consist of one man and one woman.
Eliminating gender and race restrictions in marriage has not
deprived the institution of marriage of its vitality.
Marriage is the state recognition and approval of a couple's
choice to live with each other, to remain committed to one another
and to form a household based on their own feelings about one
another and to join in an economic partnership and support one
another and any dependents.
The state has many purposes in licensing and fostering marriage.
Some of the state's purposes benefit the persons married while
some benefit the state:
a. Facilitating governance and public order by organizing individuals
into cohesive family units.
b. Developing a realm of liberty, intimacy and free decision-making
c. Creating stable households.
d. Legitimating children.
e. Assigning individuals to care for one another and thus limiting
the public's liability to care for the vulnerable.
f. Facilitating property ownership.
States and the federal government channel benefits, rights and
responsibilities through marital status. Marital status affects
immigration and citizenship, tax policy, property and inheritance
rules and social benefit programs.
Marriage creates economic support obligations between consenting
adults and for their dependents.
Marriage benefits both spouses by promoting physical and psychological
health. Married individuals are less likely to engage in behaviors
detrimental to health, like smoking or drinking heavily. Married
individuals live longer on average than unmarried individuals.
Material benefits, legal protections and social support resulting
from marriage can increase wealth and improve psychological
well-being for married spouses.
The long-term nature of marriage allows spouses to specialize
their labor and encourages spouses to increase household efficiency
by dividing labor to increase productivity.
The tangible and intangible benefits of marriage flow to a married
Same-sex love and intimacy are well-documented in human history.
The concept of an identity based on object desire; that is,
whether an individual desires a relationship with someone of
the opposite sex (heterosexual), same sex (homosexual) or either
sex (bisexual), developed in the late nineteenth century.
Sexual orientation refers to an enduring pattern of sexual,
affectional or romantic desires for and attractions to men,
women or both sexes. An individual's sexual orientation can
be expressed through self-identification, behavior or attraction.
The vast majority of people are consistent in self-identification,
behavior and attraction throughout their adult lives.
Sexual orientation is commonly discussed as a characteristic
of the individual. Sexual orientation is fundamental to a person's
identity and is a distinguishing characteristic that defines
gays and lesbians as a discrete group. Proponents' assertion
that sexual orientation cannot be defined is contrary to the
weight of the evidence.
Proponents' campaign for Proposition 8 assumed voters understood
the existence of homosexuals as individuals distinct from heterosexuals.
Individuals do not generally choose their sexual orientation.
No credible evidence supports a finding that an individual may,
through conscious decision, therapeutic intervention or any
other method, change his or her sexual orientation.
California has no interest in asking gays and lesbians to change
their sexual orientation or in reducing the number of gays and
lesbians in California.
Same-sex couples are identical to opposite-sex couples in the
characteristics relevant to the ability to form successful marital
unions. Like opposite-sex couples, same-sex couples have happy,
satisfying relationships and form deep emotional bonds and strong
commitments to their partners. Standardized measures of relationship
satisfaction, relationship adjustment and love do not differ
depending on whether a couple is same-sex
California law permits and encourages gays and lesbians to become
parents through adoption, foster parenting or assistive reproductive
technology. Approximately eighteen percent of same-sex couples
in California are raising children.
Same-sex couples receive the same tangible and intangible benefits
from marriage that opposite-sex couples receive.
51. Marrying a person of the opposite sex is an unrealistic
option for gay and lesbian individuals.
Domestic partnerships lack the social meaning associated with
marriage, and marriage is widely regarded as the definitive
expression of love and commitment in the United States.
Domestic partners are not married under California law. California
domestic partnerships may not be recognized in other states
and are not recognized by the federal government.
The availability of domestic partnership does not provide gays
and lesbians with a status equivalent to marriage because the
cultural meaning of marriage and its associated benefits are
intentionally withheld from same-sex couples in domestic partnerships.
Permitting same-sex couples to marry will not affect the number
of opposite-sex couples who marry, divorce, cohabit, have children
outside of marriage or otherwise affect the stability of opposite-sex
The children of same-sex couples benefit when their parents