May 15, 2008

Calif. supremes order gay marriage now

Posted by: Chris

NOTE: This post includes analysis of the court opinion itself. For reactions to the ruling, click here.

So much for splitting the baby. The California Supreme Court by a 4-3 vote struck down Proposition 22, passed in 2000, that defined marriage for opposite-sex only, and basically ordered clerks across the state to start marrying gay couples. Three of the four justices in the majority were appointed by Republican governors, including Chief Justice Ronald George, who wrote the opinion.

Their decision did not offer the Legislature or Gov. Arnold Schwarzenegger the opportunity to change the law in accordance with their ruling, in the way the high courts in Vermont and New Jersey did:

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union "between a man and a woman" is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 [Proposition 22] can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.

Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court.  Further, as the prevailing parties, plaintiffs are entitled to their costs.

Full opinion here.

More initial observations:

*    The majority pointed out that since the state's domestic partner law includes all the rights and responsibilities of marriage except the name, then really the only question before the court was whether it's constitutional to reserve the name itself to opposite-sex couples.

*    Even though marriage becomes open to everyone with this decision, the majority did leave open "whether the name 'marriage' is invariably a core element of the state constitutional right to marry so that the state would violate a couple's constitutional right even if -- perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage -- the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples."

That was the wiggle room I had hoped for in my post earlier today, allowing the Legislature to compromise if it wants and call the institution some other name -- "civil unions" or "civil partnerships" -- if the pushback on "marriage" is too strong.

*    Chief Justice George (pictured) also wrote on behalf of the majority that the state appeals court was wrong in refusing to apply a rigorous "strict scrutiny" to whether the state was justified in treating couples differently based upon their sexual orientation. The appeals court had said the exclusion of gays from marriage need only have a "rational basis."

That's a big victory since most courts have (inexplicably) concluded that sexual orientation, unlike race or gender or other classifications, isn't the type of official discrimination that courts should take seriously. Those other courts -- even the Massachusetts Supreme Judicial Court -- have said that a law that discriminates against gays need only have a "rational basis" to pass constitutional muster.

"Strict scrutiny" means the state must have a "compelling interest" for treating gays differently and its classification must be "necessary" to serve that interest.

*    Applying "strict scrutiny," the majority reaches four conclusions:

1. Excluding gay couples from marriage isn't necessary to  preserve all the rights of marriage for opposite-sex couples.
2. Using "marriage" for straight couples and something else for gay couples "is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."
3. Given the history of anti-gay disparagement, separate designations is "likely to be viewed as reflecting an official view that their committed relationships are of lesser stature."
4. Separate institutions for gay and straight couples perpetuates the notion that gays are "second-class citizens."

*    The majority rejected the argument by the gay plaintiffs that Proposition 22 -- the ballot measure passed in 2000 that reads, "Only marriage between a man and a woman is valid and recognized in California" -- only applies to out-of-state marriages by gay couples and not those in California itself. That finding is important because it means the two gay marriage laws passed by the Legislature (though vetoed by Schwarzenegger) -- would have had to be submitted to voters to take effect.

The other reason that interpretation is important is the new ballot measure, which would amend the California Constitution, uses the same language -- meaning it would overturn the court's opinion today if the Secretary of State validates the petition signatures already submitted and voters approve it in November.

*    The majority also rejected the Court of Appeals decision below, which had argued rather circularly that the plaintiffs sought not a "fundamental right to marry," which all agree exists, but "a fundamental right to same-sex marriage.'" That sort of circular reasoning dates back to the U.S. Supreme Court's infamous decision in Bowers vs. Hardwick that there's no "fundamental right to sodomy." The Court in Lawrence vs. Texas rejected that offensive claim, accepting that gays sought the fundamental right to sexual intimacy with the partner of their choosing.

The California court majority noted that history and concluded similarly:

The right to marry represents the right of an individual to establish a legally recognized family with the person of one's choice, and, as such, is of fundamental significance both to society and to the individual. …

In light of the fundamental nature of the substantive rights embodied in the right to marry -- and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society -- the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.

The majority also dispensed nicely with the reasoning relied upon recently by other state supreme courts rejecting gay marriage challenges, including in New York and Washington state. Those courts claimed that limiting marriage to straight couples was reasonably related to the goal of "responsible procreation," meaning that heterosexual couples can accidentally have children so society is better off encouraging them to marry so the unexpected babies are raised in established homes. Gay couples, it's been noted, can't have accidental children, so excluding them is justified. The California in effect noted the novelty of this defense of hetero-only marriage betrayed it as a pretext:

None of the past cases discussing the right to marry -- and identifying that right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution, contains any suggestion that the constitutional right to marry is posssessed only by individuals who are at risk of producing children accidentally, or implies that this constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood.

THE DISSENTS

*    Three justices dissented from the ruling, all Republican appointees. Writing for two of them, Justice Marvin Baxter said the majority overstepped their authority and should have left the decision of whether gays can marry to the Legislature and governor to decide:

Nothing in our [state] Constution, express or implicit, compels the majority’s startling conclusion that the age-old undestanding of marriage – an understanding recently confirmed [by the ballot measure voters approved in 2000] – is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea-change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

*    The third dissenter, Justice Carol Corrigan, wrote separately to state her view that the California Constitution requires only that the state offer equal rights and benefits to straight and gay couples. The high courts in Vermont and New Jersey reached conclusions similar to Corrigan’s in their gay marriage decisions, and those states now recognize gay couples with “civil unions” – as do New Hampshire, Connecticut and Washington state. She added, on a more personal note:

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the [state] Constitution compels us to do so. Here, the [state] Constitution does not. Therefore, I must dissent.

Tags: Arnold Schwarzenegger, California Supreme Court, Chief Justice Ronald George, gay marriage