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  • « My report on the Calif. decision | Main | Let's count the ways to be 'inclusive' »

    May 16, 2008

    Concurring in part, dissenting in part

    Posted by: Chris

    That's how I would have voted if I were a justice on the California Supreme Court. (To channel Judy Tenuta for a sec, "It could happen!" OK, not.) Anyway, having had time to read and digest all 172 pages of opinions on the constitutionality of excluding gay couples from marriage, that's where I come down.

    There's much to admire and respect about the majority opinion: the unflinching analysis, the clear-headed logic, and particularly the way Chief Justice Ronald George expresses the majority's views. He obviously "gets it," in the same way as Anthony Kennedy did in Lawrence vs. Texas and Margaret Marshall did in Goodridge, the Massachusetts marriage case from five years ago.

    Take this passage from yesterday's decision, for instance:

    California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity.

    This state's current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals … and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.

    That was written by someone who has an obvious familiarity with real lives of actual homosexuals, including their relationships and families. That so many men and women in black robes share that knowledge is a victory won not by lawyers and lobbying groups but by regular gay men and lesbians, willing to live their lives openly. There's no more powerful form of activism.


    The majority's opinion is most surprising for how far it goes. After concluding that existing law unconstitutionally infringes on the fundamental right of gay Californians to marry, the court could (and should) have stopped there; it didn't.

    Instead, the majority went on to conclude that separate institutions for straight and gay couples also violate equal protection. Even in reaching that conclusion, the majority did more than it needed to. Having agreed with the plaintiffs that these separate institutions impacted a fundamental right (to marry), the majority could (and should) have moved on to apply a heightened standard of review; it didn't.

    Instead, the majority also decided to consider an alternative argument by the plaintiffs (two of them, actually), and in doing so decided a quetion that was of first impression and enormous importance -- whether to treat an equal protection claim based on sexual orientation in the same way as race and gender.

    If a law makes classifications based on race and gender, the burden is actually on the state to demonstrate (1) a "compelling interest" served by the law and (2) that the challenged classification is "necessary" to achieve that end. In suits challenging less "suspect" classifications, the plaintiffs bear the burden of proving there's not a single legitimate state interest at stake, whether or not the legislature was actually motivated by it. If one is identified, the classification must bear no rational relationship to said purpose.

    The Lawrence and Goodridge decisions, along with most others in favor of gay rights challenges based on equal protection, sexual orientation is either deemed too different from race or gender to deserve "strict scrutiny," or the issue entirely is avoided entirely -- by concluding the challenged law fails even the more deferential analysis.

    It was a clear exercise of judicial activism for the California Supreme Court to decide the case in three different ways, when one would do. It's not the type of "judicial activism" that so animates right-wing radio and Republicans politicians; they're outraged by the entire idea of "unelected" judges thwarting the "will of the majority" -- except when it decides a presidential election in their favor or affirms their right to bear arms.

    But deciding unnecessary legal questions, especially enormously important ones of first impression, is activism of the type that rightly concerns scholars and jurists. And I say that even though I'm delighted with the conclusions the majority reached in all three of its alternative avenues to the same answer; but it shouldn't have even "gone there" in the first place.

    This form of activism doesn't usurp the role of the legislature so much as it does that of the men and women who will sit on the California Supreme Court in the future. Now that these four justices have ruled on all these extra questions, future justices are now bound by the precedent or face the daunting prospect of overturning yesterday's decision. That's unlikely for conservative judges who practice true judicial restraint -- witness how Justices Kennedy and Sandra Day O'Connor eventually acquiesced to Roe vs. Wade despite their clear misgivings about it.

    Kenji Yoshino, an openly gay Yale law professor, is thrilled with the majority's naked power grab, and lays out nicely the ripple effect (think tidal wave) of this legally superfluous decision sexual orientation is a "suspect class":

    To my knowledge, California's is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in). For gays, this pronouncement is critical because it is portable—that is, gays can now challenge any California state policy that discriminates on the basis of sexual orientation; … in its own right is a signal advance for gay people.

    The magisterial conviction of Thursday's opinion would be extraordinary no matter what court had delivered it. But its issuance from the high court of California is nothing short of revolutionary. Recent polls show that the California Supreme Court is the most respected state high court in the country. This suggests that other courts may borrow its strict scrutiny standard, under which most bans on same-sex marriage would fall.


    The other example of judicial activism in yesterday's decision is potentially even more dangerous, and may have even set up gay folks -- and the court itself -- for a devastating backlash. In the brief, three-page section that concludes their opinion, the majority decides "the proper remedy" for the unconstitutional wrong done by the separate institutions o marriage for heterosexual couples and domestic partnership for gays.

    Without citing any precedent, the majority concludes it's left with only two options: extend marriage to gays or withhold both forms of recognition from everyone. Between the two, obviously, the former makes far more sense.

    But of course there was a third option; and one with which the majority was clearly familiar -- since it's the remedy ordered by the supreme courts in Vermont, Massachusetts and New Jersey. Having laid out what the state constitution requires, those courts left it to the popular branches to decide how to implement their ruling.

    Doing so wasn't just prudent politically, and a smart recognition that the popular branches have a legitimate role to play here, but was especially justified because of the range of ways to address the constitutional deficiency. Choosing among those ways ought to be left to the popular branches.

    Chief Justice George himself acknowledged on two occasions that opening up marriage to gay couples wasn't the only way of satisfying the constitution. The state could "assign a name other than marriage as the official designation of the formal family relationship for all couples," perhaps in order to "emphasize and clarify that this civil institution is distinct from the religious institution of marriage." Doing so would also be a way to bypass the emotionally freight surrounding the word "marriage," while still treating everyone the same.

    Maybe "civil unions" or "domestic partnerships" for all wouldn't fly politically, but maybe the legislative debate itself might reconcile more Californians to the idea that marriage for everyone makes the most sense. But these four justices robbed the public of that debate, as well as the democratic freedom of selecting which constitutionally acceptable form of legal recognition they wanted.

    It's just so unfortunate that the court steered such a clear and, yes, "majestic" course through so many minefields in the first 119 pages of its decision, only to veer off into an abyss in the last three. But now their judicial activism has set two high-speed trains on a crash course: one with clerks handing out marriage licenses to ecstatic gay couples, and the other with enraged conservatives gearing up for a November ballot measure to overturn the court's ruling.

    That's a recipe for more divisiveness of the sort of that has plagued the abortion debate for a quarter-century, and places in grave jeopardy the very fundamental right that the majority sought to vindicate.



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    1. The Gay Species on May 16, 2008 1:52:07 PM:

      Imagine? THREE of the four justices in the majority are Republicans, and their extended argument beyond your narrow focus is "too broad?" The ultimate question is whether SSM stands after November's plebiscite. For THAT to happen, we had better hope Republicans, like Governor Schwarzenegger, is on the side of equality, justice, etc. (He is.) Perhaps the extended arguments were not meant to placate you, me, or the Pope, but to give solid reasons why a "lawless action" by a San Francisco Mayor could still deliver a reasonable outcome by solid logic, rather than by fiat.

    1. Strict Scrutiny on May 19, 2008 10:37:59 AM:


      I completely disagree that this court engaged in any judicial activism by deciding this issue on multiple grounds. I

      First, notwithstanding the common practice of deciding cases on the narrowest grounds possible, I think the court had a duty to address all the arguments advanced by the parties, including the equal protection ("E.P.") issues. The legal questions in this case were complex and warranted full treatment and analysis by the court.

      Deciding this case on the grounds of a "fundamental right to marry" on was insufficient because gay couples in CA already had access to all the rights, privileges, and benefits of marriage through the Domestic Partnership Act. So, the inevitable question would have arisen, "What's the effect of this decision, if any, if gay couples can already "marry" in a very real sense?" The court was required to state why the current laws for domestic partnership violated the right of same-sex couples to marry.

      This is why an E.P. analysis was necessary. The legislative scheme in CA allows "marriage" for opposite-sex couples and "domestic partnerships" for same-sex couples. The court properly found that this scheme present a "separate but equal" issue. E.P is the appropriate means to address such a disparity; the next step was to select the appropriate standard of review. The court determined that strict scrutiny was required. The court had every right to select the level of review it felt was appropriate.

      Finally, the court's instruction on how to implement the decision was also proper. You've cited similar court decision in CT, VT, and MA and said that in those cases, the courts left it up to the legislature how to implement their ruling. But that wasn't practical here. In CT, for instance, there was no domestic partnership laws or civil unions on the books. So, a proper cure under CT law was to enact civil unions. Here in CA, we already had "civil unions" but we called it something else. The ONLY difference between a California marriage and a California domestic partnership is the name. Therefore, there were only 2 options available, as was explained in the opinion. I reject, in the friendliest way possible, your theory that there was a 3rd option -- leave it to the legislature. The legislature only had 2 options; the court simply took the liberty of announcing those options itself. This was proper.

      For these reasons, I cannot agree with your position that this court engaged in any "judicial activism" or overreaching.

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