It depends what the core of the Church’s opposition is. If we assume that the Church does not want gay unions to be called marriage, then they have one option that is not a constitutional amendment: lobby the legislature to stop recognizing marriage entirely, but only recognize civil unions. Of course, this is probably suboptimal from the church’s point of view. If the Church is only worried about the possibility of losing privileges such as tax-exempt status and its adoption license, the easiest thing to do is to lobby the legislature to pass a law exempting religious groups from non-discrimination laws (if they aren’t already–that’s fairly standard in non-discrimination laws).

Move to Utah and vote for McCain?

Can someone (practicing attorney or not) please answer me this nagging question? What course other than the constitutional amendment route does the religious right have to lobby their position on this issue?

I ask because I really don’t want these guys to feel cornered. The Christian right is increasingly an Armageddon people, looking too fondly back on stories of Shibboleth separations of the righteous from the wicked and too anxiously forward to massive destructions and warfare proceeding utopian millennial society.

Who knows what they’ll do if they feel cornered and exhausted with legal course.

I also agree that marriage is a fundamental right. However, the scope of marriage as a right has been left to states to define. CA had defined it by referendum to not include SSM. The CA Supreme Court however found that its own statement of policy and laws violated its constitution with nothing more than interracial marriage as a precedent. It created that right out of thin air against its own statutory laws.

SSM is not a fundamental constitutional right. In fact, New York held in Hernandez v. Robles that marriage as a fundamental right did not extend to SSM. Virtually every other court that has addressed the issue has reached the same conclusion except CA. The Majority Opinion of the New York Court of Appeals in Hernandez v. Robles which rejected any reliance upon the Loving case as controlling upon the issue of same-sex marriage, holding that:

“[T]he historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”

So your analysis is mistaken. Your assessment of Catholic Charities is also mistaken. Of course Catholic Charities chose to shut down because Mass. law forced it to either perform same sex adoptions or be denied a license by the State of Mass. Given the alternatives, it chose to shut down rather than do same sex adoptions. You may call that a choice, but it was a choice coerced by the law. Further, I never said that Catholic Charities breached fundamental rights (I am well aware that private agencies cannot violate fundamental rights). The same sex adoptions were part of the civil unions statutes. And yes the LDS Church is in the same boat — that is a lot of muscle to take on. But in the Mass. the legislature did so and effectively obliterated Catholic Charities as an adoptions agencies. The LDS Church now faces the same kind of pressures that will undoubtedly arise in CA. That is a significant stake and more than justifies the Church’s involvement in the issue by my lights.

Of course with respect to your argument, I reject (2) since as you admit having an institution that is functionally equivalent doesn’t make it legally equivalent. Marriage is the best example. The State could recognize marriage as a unique religious institution and recognize that the State cannot get involved in it for that reason. What the State does is merely a civil union (that is all it could ever do). However, it can permit private organizations the license to perform such marriages. The State can extend the designation of civil union to the ceremonies it performs while permitting a functionally equivalent right to private entities to perform marriages. So (2) is false and it follows that (4) is also false.

Thus, both (1) and (4) ought to be rejected. The State does not have to recognize SSM merely because it has set up an equal system for same sex couples to be joined by civil unions. It is not a denial of equal protection for the State to define marriage not to include SSM even if it grants rights to civil unions. Of course, if your argument is correct, it is a very good reason to refuse to adopt civil unions for same sex couples because it entails that marriage must be extended to them as well.

With regard . . .

I’ll just try to answer all of your concerns listed in no. 86.

So I just ask — what is the basis for your assertion that SSM is not going to be treated like other types of marriages under the Full Faith and Credit Clause?

While states usually automatically recognize marriages formed in other states even if that marriage wouldn’t be valid in the forum state, states also have a long and rich precedent of not recognizing marriages if those marriages would contradict public policy. See, e.g., Metropolitan Life Ins. v. Chase, 294 F.2d 500 (3d Cir. 1961) (common-law marriage); Goldman v. Dithrich, 179 So, 715 (Fla. 1938) (Consanguinity); Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002) (Same-Sex civil union); In re Estate of Gardner, 42 P.3d 120 (Kan. 2003)(Transsexual marriage). The Supreme Court has said time and again that full faith and credit does not apply to laws that are against the public policy of the forum state. See Sunoil Co. v. Wortman, 486 U.S. 717 (1986); Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). In case there is any question about whether states have to recognize out-of-state same-sex marriages, the Congress has also passed the Defense of Marriage Act, which clarifies the long-established doctrine. I’d love to see all of these precedents that you talk about–I bet not one of them has been issued by a state that has passed a law or constitutional amendment that says that it is the strong public policy of this state that marriage shall be between a man and a woman.

Your fundamental rights analysis is flawed–no other state outside of California is bound to accept California’s determination that same-sex marriage is a fundamental right protected in the California Constitution–just like no other state was bound to California’s decision that interracial marriage was a fundamental right protected in the California Constitution when it decided Perez v. Sharp, 198 P.2d 17, back in 1948. Not until the Supreme Court found that interracial marriage was a fundamental right protected in the federal Constitution in Loving v. Virginia 23 years later did every state have to recognize interracial marriages. That is the way that constitutional law works–only the Supreme Court can issue constitutional opinions that are binding on every state through the 14th amendment.

That is why the CA recognition of SSM as a fundamental right is so far reaching. Generally marriages of any type have not been seen as a fundamental right but as a protection extended by the state for certain relationships.

Also incorrect–see Loving v. Virginia–Marriage is a fundamental right–the only thing people are arguing is the scope of that right.

Organizations that deny fundamental rights can be denied tax exempt status, licensing rights for adoption, marriage and other counseling.

No. First, Catholic Charities got out of the adoption business in Mass. because of a statute that required adoption agencies to not discriminate against same-sex couples. They weren’t forced to shut down–they shut down before the law came into effect. This had nothing to do with fundamental rights, but the public policy of the state as determined by the legislature. Second, private entities cannot violate fundamental rights–only governments can. Private entities may be denied privileges based on whether the grant of the privilege would be strongly inconsistent with the public policy of the state. And remember, the Church is in the same boat with the Catholic Church–that’s a lot of muscle for a legislature to take on.

So what is at issue? Only the right to call gay unions a “marriage” and thus have the State condone and promote such relationships. I just don’t see that as a legitimate function of government.

That’s funny, because my analysis came out exactly the opposite. Here’s what I said on another thread on this topic:

1) Prop. 22 was interpreted as excluding same-sex couples from the institution called marriage, but it did not exclude the legislature from setting up a parallel institution whereby same-sex couples could receive all the same rights and benefits as marriage.

2) When two parallel institutions are set up as functionally equal to each other, it is suspect (not necessarily in the legal sense) and merits further examination.

3) The point of this statutory scheme was to allow same-sex couples the same substantive rights while signaling that their unions were not equal in dignity to traditional marriage.

4) That is an illegitimate legislative purpose that violates the equal protection clause.

Which of these statements do you disagree with?

All the best…

That is why the CA recognition of SSM as a fundamental right is so far reaching. Generally marriages of any type have not been seen as a fundamental right but as a protection extended by the state for certain relationships.

I just don’t see what is ambiguous about my 1st paragraph — but for those who do better with pictures, how about this: In CA marriage is now a fundamental right and denial of SSM is denial of a fundamental right. Organizations that deny fundamental rights can be denied tax exempt status, licensing rights for adoption, marriage and other counseling. The refusal of Mass. to grant a license to Catholic Charities in Mass. unless it agreed to place children with same sex couples is a good example even without the added weight of a fundamental right. So the Church has a lot at stake.

Further, the issue is not denial of rights and privileges to gays. Gays already had all of the rights and privileges of marriage under CA’s civil unions statute before the In Re Marriages case. So what is at issue? Only the right to call gay unions a “marriage” and thus have the State condone and promote such relationships. I just don’t see that as a legitimate function of government.

You are incorrect about full faith and credit. First, it has its own clause in the Constitution–the Supremacy Clause just says that federal law trumps state law when the two are in conflict. The Full Faith and Credit requires states to recognize the judgments of other states (no matter what) and to recognize the public records and declarations of other states so long as it doesn’t contradict the public policy of the recognizing state. That means a state is not required to recognize a same-sex marriage of another state, but it is required to recognize a same-sex adoption or a same-sex divorce from another state.

As for your response to Kaimi, don’t be so quick to impute bad faith–I read the first paragraph of your first post four or five times and couldn’t understand it for the life of me. If he didn’t address what you meant, then try explaining it again. I find diagrams and pictures are very helpful sometimes. Regardless, assuming people are speaking in good faith unless you have clear evidence to the contrary is the foundation for civil conversation, which I’m certain is what we all want.