Ryan ChartrandCal Poly’s fourth annual Constitution Day lecture had a timely edge this year as voters prepare to pass judgment on Proposition 8. The California state ballot measure would amend the state’s constitution to define marriage as solely between a man and a woman.
Eileen Scallen, law professor for William Mitchell College of Law, examined the reasoning behind the California Supreme Court’s 78-page decision to recognize same sex marriage as a fundamental right last May.
During her speech “Family as a Fundamental Right: The Constitutional Right to Same-Sex Marriage in California,” she explained what she said is the fundamental misunderstanding of the decision.
“This was not simply, to paraphrase a notorious politician, a ‘Like it or not, gay marriage is here’ decision,” Scallen said, alluding to the often repeated line of a speech by San Francisco Mayor Gavin Newsom.
“This was a very elaborately considered and argued decision by the California Supreme Court. It was however hotly contested,” she said.
The real issue for the court to decide was not about who claims marriage as a word, but about the concept of creating dual systems, said Scallen.
“The issue being decided here is whether the state can create two different statutes. One for opposite sex couples, we call that civil marriage, and the other is domestic partnership in California,” she said. “The question is whether the state can do that without violating the civil rights of people who want to get married.”
Scallen boiled down the court’s detailed and broadly based ruling to three key arguments: people have a fundamental right to marry the person they love; separate systems violate equal protection under the law; and the court is able to make this decision under the principle of separation of powers.
“There is no new law here,” she said. “The court recognized previous instances in which denying someone marriage was recognized as an undue abridgment of liberty. It’s one of the oldest tenets of law, held over from Britain, that you just don’t treat similar cases differently.”
Scallen, a self-described lesbian Catholic and former California resident now resides in Minnesota, where she said, “they’re a long way from anything like this.”
People from both sides of the issue came for the event’s question and answer period. Some attendants expressed concerns regarding a possibly impingement on freedom of religion if Proposition 8 failed.
Scallen assured the audience that such fears were unfounded and offered her services pro bono if any religious freedom complaints appeared due to this failure.
After the lecture she said, “people (came) with very good intention. The proponents of Prop. 8 are very frightened. It’s just fear that somehow by giving other people rights they are somehow giving up rights for themselves. There are plenty of rights to go around though; it’s just not something that’s rationed.”
Debra Valencia-Laver associate dean of the College of Liberal Arts, which sponsors the event, said that while attendance has been dropping since the first year’s event, it was a good turnout this year with a small yet highly interested crowd.