The California Supreme Court hears arguments today challenging the constitutional amendment CA voters approved defining marriage the way it had historically been understood because the state court had recently inserted its own interpretation.
The challenge is based on two lines of argument. First, that this represents a "revision" of the Constitution rather than an "amendment" so the wrong procedure was followed and it should have gone before the state legislature for a vote (no mystery what the outcome would be there) rather than the people. That has little chance of success because this same court rejected that challenge prior to election when challengers tried to throw the proposition off the ballot.
The second line of argument claims that since the court had already ruled on the meaning of the state constitution, upholding same-sex marriage, an amendment cannot be inserted to change it. That has a chance of persuading the court, and this court has a long history of overturning propositions passed by the people.
As we've argued long and often at STR (a search on this blog will produce a number of posts on the topic), marriage isn't an issue of fairness. It's not a civil right. It's necessarily discriminatory because it favors the kinds of relationships that the state has in interest in. Marriage is unique in that it produces the next generation of society, an interest all cultures must favor. Marriage also provides the kind of stability that not only protects children. Without that kind of stability when the family breaks down, the state has all sorts of new burden that affect everyone, including increased crime and poverty that social programs are then needed to fill the gaps.
The state obviously has an interest in traditional marriage.
Marriage isn't a civil right because the government is only obligated to treat equals equally. Same-sex marriage, by definition, is not equal to heterosexual marriage. It's not that the individuals aren't equal, they certainly are. But two men and a men and a woman are obviously not equal pairings. The objection is always offered that the people love each other. Frankly, the government doesn't care about feelings, it cares about commitments and oaths that keep the family intact for the children marriage produces. Citizens have the freedom to enter into all kinds of relationships they choose to based on their feelings, but government has no stake in those. That's why traditional marriage is different and should be treated differently than other relationships.