In May, the California Supreme Court held “unconstitutional” a California statute defining marriage as existing between one man and one woman. The opinion issued by the Court went out of its way–or, as Shakespeare might say, protested too much–to assure the people that the Court was not making policy, but only applying simple, well-recognized legal concepts. Immediately after making this claim (at length), the Court held:

“under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.”

This language is shocking, as is the reasoning used to reach this conclusion. The Court reasoned, essentially:

(1) In prior cases, we have recognized that marriage is a fundamental right;

(2) In prior cases, we have held that restrictions such as prohibitions against interracial marriage are an unconstitutional violation of that right;

(3) Therefore, a restriction against same-sex marriage must also be unconstitutional.

The shocking part of the opinion is what the Court assumes, but does not bother to justify. If stated, it would be minor premise 2.5 in the syllogism above:

(2.5) There is no meaningful difference between a person of one race marrying a person of another race, and a person of one sex marrying a person of the same sex.

This, of course, is the principal disagreement in the “gay marriage” debate. Opponents of “gay marriage” argue that “gay marriage” is literally a nonsense concept, like a square circle, because marriage simply is the union of a man and a woman, and nothing else. There is all the difference in the world between a law prohibiting a black from marrying a white, and one prohibiting a man from marrying a man. The first law puts an unnatural limitation on the concept of marriage–the second merely excludes something that is not marriage in the first place. This thought process exists in the shadow of the idea that concepts, words, and ideas do and should have definite meanings–the old-fashioned notion that “right” and “wrong” exist, are to some degree knowable, and apply to people, ideas, and conduct.

Gay marriage proponents engage in a very different sort of reasoning, based on an entirely different set of assumptions about the world. In place of the traditional understanding of reality described above, they raise up a worldview based on an almost religious devotion to absolute equality. As my colleague Paul Goodell has observed elsewhere on this site, this commitment to absolute equality bears no room even for physical reality. If traditionally accepted, or even empirically observable, differences exist between types of people, those differences must be denied in the name of equality.

Under this view, forbidding gay marriage is literally heretical. Because men and women are absolutely equal–that is, are interchangeable units–it makes no logical difference whether a man marries a woman or another man. Any distinction in law that honors one of these unions as marriages but fails to so recognize the other implies a difference in kind between men and women, and is therefore an affront to Equality.

That is why the California Supreme Court decision is shocking. Fundamental concepts of legal reasoning such as stare decisis rely on the first method of thinking described above. The California Supreme Court rejects traditional legal reasoning in favor of this relatively new, still-radical manner of thinking–and semantically engineers its opinion so as to appear to fit within the framework of traditional legal reasoning. Once the judges of the California Supreme Court decided to do so, precedent, democratically passed statutes, and even the California Constitution bore no further relevance to the outcome of the Court’s decision. Equality was the only guide and the only limitation on the Court’s exercise of power.

It is disturbing to me as a Christian to see the California Supreme Court approve of gay marriage. It is even more disturbing to me as a lover of liberty to see the California Supreme Court strike down a democratically approved statute simply because it ran athwart of their quasi-religious commitment to the concept of Equality.

The technical semantics employed by the Court to arrive at its holding demonstrate the point. The Court framed the question not as whether a law prohibiting gay marriage was unconstitutional per se (although it ruled on this issue), but rather as whether it was unconstitutional for California to maintain simultaneously a set a marriage laws and a set of same-sex domestic partnership laws that offered “virtually identical” legal rights and protections, honoring one with the the respected label “marriage” but referring to the other as a mere “domestic partnership.” Rather than honoring the democratic process by allowing the logically compatible statutes to coexist, the Court falsely set the marriage statute and the domestic partnership statute in opposition to each other, creating out of whole cloth a legal “need” for the Court to choose between them. The Court then held that the domestic partnership statute was constitutionally entitled to not only the same same legal (which it already had, as the Court admitted), but also the same SOCIAL honor as the marriage statute.

This opinion was more than a declaration of law, and even more than mere improper judicial policy-making. The opinion shows that to the extent that the democratic laws and constitution of California thwart the purposes of Equality, the Court’s loyalty lies with Equality. The opinion could be summed up in the sentence, “Democracy be damned.”