The fundamental interest in liberty and personal autonomy

Don't Like Gay Marriage? Don't Get One!Finally catching up on the California Supreme Court decision on same-sex marriage (See reports in the SF Chronicle, LA Times and NY Times). I believe all but one of the court are Republican-appointed so their decision to overturn a voter approved ban on gay marriage was a surprise, at least to me.

More surprising is the sweeping language of the decision. The court pointed to its 1948 decision overturning state bans on interracial marriages as its model, and laid out why the right to marry should be seen as a fundamental human right. (Full text is here, see “In re Marriage Cases 5/15/08 SC” to download)

the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish–with the person with whom the individual has chosen to share his or her life–an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own–and, if the couple chooses, to raise children within that family–constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

I find these words rather inspiring, especially coming from Republicans. But I also find a sort of contradiction in the libertarian emphasis, on the one hand, on personal autonomy, and on the other hand the demand that the state “recognize and protect” familial units. Philosophically, I’ve never understood why we need the state to sanction our most intimate relationships. Practically, it’s a different story, and as a person living in a state-sanctioned heterosexual relationship I recognize that there are many, many benefits to state recognition. But the state might just as well distribute benefits to individuals regardless of their intimate relationships, and leave the sanctioning of these relationships completely to the private sphere.

The practical reality is that we have this thing called “marriage” and we’ve invested it with a variety of economic and social benefits. Those benefits are not likely to be scaled back or redirected to any significant degree. So if we have these benefits we must distribute them equally.

Of course, this is the source of the dilemma the social conservatives have found themselves in. Having demanded state protection for their most cherished form of intimate relationship (a.k.a., “marriage”), they now have the state redefining “marriage” into something they cannot recognize. Had they just kept the the sanctioning of their relationships within their religious groups, none of this would matter. One can say that this ignores the long legal tradition of heterosexual marriage. But we’ve been reinventing and reinforcing that “tradition” for the last generation largely in reaction to the growing public acceptance of homosexuality.

To quote the gentlemen in the picture at the head of this post: “Don’t like gay marriage? Don’t get one.”

And I would be remiss if I didn’t raise the most compelling rationale in support of same-sex marriage rights: love. It was inspiring to see the love and joy on the faces of people getting married in San Francisco back in 2004. We need more, not less, love in this world. So let’s have it.

Conservatives in California are moving to place a constitutional amendment on the ballot this fall, which would over turn the Supreme Court’s decision. Of course, there is no way this will stay out of the presidential campaign. But it is not clear that the issue will be a net negative for progressives, as it was in 2004. There is an interesting analysis of the polling data from FiveThirtyEight suggesting that the issue will not necessarily be purely negative for Obama. His coalition already trends heavily in support of same-sex marriage rights, and McCains trends heavily away. So it will be a contest to see which coalition is more motivated and turns out in greater numbers. The same would not be true for Clinton, with her many older voters. She might lose them to McCain.

And it seems that the tide of public opinion may be turning against the conservative position here. has a link to a new California poll (click through to the PDF) that finds support for gay and lesbian marriage by a 51% to 42% margin. Only 19% said there should be no legal recognition of same-sex relationships at all. Tracking opinions on this question since 1977 show a steady increase from 28% support to 44% support in 2004 and now 51% support. Two points of interest. First demographics. Voters under 40 years old support gay marriage by very wide margins, while voters over 65 oppose it. And Latino voters, another growing voter demographic, support 49 to 42. Secondly, there is wider opposition to amending the state constitution to prohibit same-sex marriage (54% to 40% opposed). For the data hungry, there was an earlier post about national trends on this question, showing a long term decline in opposition to gay marriage that was disrupted by the 2004 election but is not returning to trend.

It will be interesting to see where Obama goes with this. The issue will test his skills as a communicator. He can say, “it’s up to the states,” but that will be hard to compartmentalize for long. And the language of the majority just calls out for his embrace. Apparently he’s on record against the Defense of Marriage Act, in favor of federal recognition of civil unions, and against federal recognition of gay marriage (although I can’t find anything about it on his website). What he can do is help shape the rationale for rejecting a state constitutional amendment, and given his voter base he might use opposition to the proposed constitutional amendment as another get-out-the-vote rationale. It might play in the opposite way it did in 2004.

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1 Response to The fundamental interest in liberty and personal autonomy

  1. Tim Lacy says:


    Interesting post. I found myself reflecting on the history of marriage a week or so ago at H&E (my post was imperfect, but the comments should correct any misperceptions). The point with the post seemed obviously tolerant to me: if we can show that marriage is not solely a Western-Christian-heterosexual institution, then no one can use the natural/common law/Christian tradition arguments to ban gay marriage in our/a secular tate.

    Anyway, I had no idea a Republian-appointed CA court made this decision. This is one more strike against those Christians who believe that a Republican-appointed Supreme Court will make all of their social/ethical quandries (i.e. abortion) go away.

    – TL

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