INACCURATE COVERAGE OF GAY-MARRIAGE ISSUE
by Leo E. Laurence, J.D.; Member, San Diego "Pro" chapter; Member, National Committee on Diversity
Some stories on the California Supreme Court's decision on gay marriages reported that the court had created "new law." That was inaccurate.
Some stories said the high court's ruling was made by "activist judges." That was inaccurate.
Some stories said the high court should have following the "will of the people" who voted overwhelmingly on a statewide initiative in 2000 that marriage must be between a man and a woman. As a matter of law, that was inaccurate.
No "new law" was created by California's high court.
Rather, after an exhaustive study of both the law of marriage (for straights) and the statuatory "domestic partnerships" (for Gays); the court found that having two, "separate, but (supposedly) equal" laws for straight couples and gay couples was unconstitutional under the state's Constitution. That's all it did. It did not create "new law."
When I served as a legal researcher at the California Court of Appeal for four years, most major Opinions of the court ran 30-40 pages. This gay-marriage ruling is extremely complex and thorough. It runs 161 pages, including dissents.
All but one of the justices (appellate jurists are called justices, not judges) had been appointed by conservative republican governors. Chief Justice Ronald M. George, who signed as primary author (though the court's legal research staff did most of the work), has a long reputation as a law-and-order jurist. He's hardly a liberal "activist."
While voters in 2000 had voted overwhelmingly on a statewide ballot initiative that marriage must be between a man and a woman; it is fundimental law that neither the Legislature nor the voters can enact a law that does not pass constitutional muster.
Even if 99 percent of the voters approved a law that husbands could hospitalize their wives without legal cause, such a law would be struck down by the court as violating the constitutional rights of the wives. It is the duty of the state's Supreme Court to rule on these issues under the doctrine of separation of powers.
"The question of access to civil marraige by same-sex couples is not a matter of social policy (to be enacted by the Legislature or by a vote of the people), but of constitutional interpretation. It is a question for this court to decide," the Opi9nioin states clearly.
Many stories focused on the link between marriage and procreation, saying that marriage must be between a man and a woman because only they can biologically produce children. In rejecting that arguement, the high court said, "the constitutional right to marry never has been viewed as the sole preseerve of individuals who are physically capable of having children."
In the law, as Californoia goes, so goes the nation; and frequently that's true. That's why this issue will spread across the country, paticularly if the statewide ballot iniative designed to overturn this gay marriage ruling is defeated at the polls in November.
Therefore, reporters and editors nationwide will be facing this issue for some time to come. It is important that they understand the ruling, and - in particular - what it does not hold.
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Add your comments, or contact Leo Laurence at (619) 757-4909 or at leopowerhere@msn.com