In 1948, the California Supreme Court became the first state high court in the nation to strike down a law that barred interracial marriage. Its decision preceded by almost 20 years what would be the same ruling by the U.S. Supreme Court.
The California high court’s ruling was no fluke,California has long been in the vanguard of civil liberties, often leading the way among the states by dealing the first blow to discriminatory laws and government actions. It was California that produced Earl Warren, a former governor who became a giant of American jurisprudence as chief justice of the U.S. Supreme Court in 1953, and the very next year led the court in banning segregated school systems in the landmark case, Brown v. Board of Education.
Now, 60 years after it extended the right to marry to interracial couples, our state Supreme Court is again being asked to expand the right to marriage, this time to same-sex couples. The same-sex marriage issue comes to the court four years after San Francisco issued marriage licenses to thousands of same-sex couples. The state high court invalidated the marriages within a few months of the licenses being issued, and lawsuits brought on behalf of more than 20 same-sex couples followed, and the cases are now before the court.
Many are anticipating that the court will uphold the status quo and, for the moment, tell same-sex couples they will have to make due with California’s existing domestic partnership laws. A majority of justices seem to feel that it is either too soon to expand the right, or the decision should be made, if at all, by the state Legislature.
The extension of the legal right to marry to homosexuals is supported not only by the equal protection clauses of the state and federal constitutions, but also by some of our most basic notions of fairness that serve to form the bedrock of our democracy. The equal protection of our laws is fundamental to our freedom, to the very concept of equality itself. And inherent in the right is that government will not discriminate against its citizens on the basis of some immutable characteristic of the individual, such as race or gender.
How can any society call itself free and just if it denies legal rights to its citizens simply on the basis of who they are? Yet our history is littered with acts of government-sponsored discrimination that denied millions of Americans the right to vote, to receive a public school education, to obtain employment or even to marry on the basis of race and gender. The wisdom and inherent fairness of those judicial decisions that corrected these wrongs is now accepted without question, and these freedoms are now accepted as integral to the promise, and reality, of equality under the laws.
We are not done, as California’s continuing denial of the right to marry to homosexuals tells us. This denial undermines our very claim as democrats, discriminating as such laws do against a group of people on the basis of what modern science and thought tell us is an immutable characteristic of human beings,their sexual orientation. We now understand that homosexuals are homosexuals by birth, not choice, yet we continue to struggle with a bias that has existed since ancient times. Indeed, the antipathy for homosexuality is as old as the Bible, in which we learn from Moses that God purportedly admonished him to instruct the Israelites not to “lie with a man as one lies with a woman” for that is “detestable” (Le-viticus, 18: 22). Of course, the Bible’s 3,400-year-old scriptures were grounded in little knowledge about the true nature of sexual orientation, and it is debatable that Moses would have written the same words had he known, as we do now, that homosexuals are born, not made.
The equal protection of the law isn’t optional in a free and democratic society. Nor is it a commodity to be doled out as the majority sees fit. Rather, equal protection is a shield for those inherently less powerful, and our democracy finds its true measure in whether the promise of freedom is a living reality for all members of society,regardless of status or condition,or whether instead it’s reach is to be tethered to the comfort and convenience of the many. Injustice anywhere is a threat to justice everywhere, as Martin Luther King Jr. admonished a nation from the Birmingham jail more than 40 years ago. Our state Supreme Court would do well to heed his words.
Mears runs his own Costa Mesa law firm and is a former city councilman in Irvine.
