No ought from an is. David Hume said that in the 18th century. Just because a thing is the way it is (up until now) does not mean it ought to be that way (into the future).
Yesterday, the Supreme Court of California overturned two state laws that restricted marriage to unions between a state-approved man and a state-approved woman. The vote was 4 to 3. (6 of the 7 justices, including all dissenters, were appointed by Republican governors.) Voting with the majority, Chief Justice Ronald M. George wrote the opinion. He makes a case for why tradition (what we’ve done in the past) is not sufficient justification for discrimination (click here for full text pdf):
“…Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v. Sharp (1948), 32 Cal.2d 711 — which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry…—makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized.”
An individual’s right to marry the person whom she/he has chosen and establish a family “encompass[es] the core set of basic substantive legal rights” and is “integral to individual liberty and personal autonomy”:
“…in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples…”
There is no compelling state interest for differential treatment. Further, it engenders harm and illegally sanctions discrimination:
“First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples… Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children… Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional…”