Bonilla V. Hurst: The Email That Started It All

My thoughts: Seems to me that the Court in California is hung up on the definition of marriage as it was understood at the time the Constitution (either the U.S. or California) was written or at the time the Perez and Loving decisions were made (which struck down miscegenation statutes as unconstitutional on both substantive due process and equal protection grounds). In other words, the Court seems to hollow out the Petitioners case by mischaracterizing the right to marry in an inherently limiting way. In this light, the right to marry only protects an individual's right to choose a partner of an opposite sex. Given that, the Petitioners appeal seems to necessitate a redefinition of the term/idea/definition of marriage itself. This characterization of the issue is insidious because it requires the Court to be "activist," enacting social mores instead of enforcing them, a role they do not embrace. Pish Posh. If we're redefining marriage, it's checkmate. A different spin on the core legal issue is critical. Here it is ... Marriage and the right to marry have essential characteristics, none of which reflect race, sex or sexual orientation. Marriage, legally, is the civil institution and status that recognizes and attaches legal significance to intimate, private unions. It follows, then, that the right to marry includes the right to choose one's husband or wife. That choice is what makes marriage private and intimate ... special. That choice is what elevates marriage to a form of expression and explains why it implicates our identity, dignity and humanity. Marriage as a symbol helps a person define himself or herself vis-a-vis the person they love, express that love to the world (in a language that is commonly understood) and receive acknowledgement and legitimacy from a larger public apparatus. The right to marry, upheld as a Constitutionally-protected liberty interest, rings hollow when the State can deny our choice of partner based upon anything less than a compelling state interest. Ah. The worm has turned. The definition of marriage has always been the same; the State's restrictions upon that right are what face historical contingencies. The restrictions on marriage have characteristics that

relate to age, race, sex or sexual orientation. When viewed more clearly, the Petitioners do not want a redefinition of marriage; they want a justification for an irrational, discriminatory restriction placed upon the right to marry. To be clear, the definition of marriage before Perez and Loving was not: the civil institution and status recognizing and attaching legal significance to intimate, private same-race, opposite-sex unions. The Petitioners in that case were not redefining marriage. The same-race restriction was struck down because it was Constitutionally invalid. The Court's decision did not speak to any unspoken or implicit (now made explicit) opposite-sex requirement. The Court has not needed to speak to that until now. To be sure, the right to marry and choose one's husband or wife are not absolutes. When there is a compelling state interest, the State may restrict the right to marry. For example, the State has a compelling interest in prohibiting adults from marrying children to protect children from sexual abuse and to foster their full development and autonomy. Therefore, age-based restrictions on the right to marry satisfy the required Constitutional scrutiny. On the other hand, the State is constrained by the Constitution. In Perez, the Court held that restricting a person's right to choose their partner based upon race serves no compelling government interest (nor does it have any rational basis). Consequently, miscegenation statutes were an invalid exercise of power. The California statutes, restricting a person's right to choose their husband or wife on the basis of sex (or sexual orientation) also serve no compelling or rational purpose and are similarly invalid. Whether intentional or not, the restriction in question functions to entrench and legitimize a heterosexist perspective that discounts the lives and loves of gay people. Restricting the right to marry on the basis of sex - - or sexual orientation - - they are two sides of the same coin - - maintains a system of discrimination that prefers gay inferiority and invisibility. Heterosexism finds any meaningful expression of gay identity or sexual preference as abhorrent. Given that, justice requires not just substantive fairness, but also an unequivocal public expression of that equality. California's domestic partnership laws do not represent equality; they are 21st century colored bathrooms. In fact, they are a legal manifestation

and implementation of the closet. Instead of unequivocal, easilyunderstood, publicly announced and acknowledged declarations of love, California law white-outs gay marriage with verbiage usually reserved for business entities: "partnerships." "Domestic partnership" doesn't connote love or sexuality. Domestic partners are not husbands or wives. Consequently, not only does the State distinction serve no rational or compelling government interest, it reifies the difference, invisibility and inferiority those laws were meant to combat in the first place.