A Courageous Court Decision
by MARK GABRISH CONLAN
Copyright © 2008 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
On May 17, 1954 a courageous Republican judge from California named Earl Warren issued a ruling as chief justice of the United States Supreme Court in a case called Brown v. Board of Education of Topeka, Kansas that simply and unmistakably declared that the segregated educational systems many states (not just in the South!) had maintained for Black and white students were unconstitutional. “Separate educational facilities are inherently unequal,” Warren matter-of-factly wrote. Two days shy of the 58th anniversary of Brown, on May 15, 2008, another courageous Republican judge from California, Ronald George, wrote a ruling as chief justice of the California Supreme Court that declared the separate systems California had set up for registering and granting mutual rights and responsibilities to committed couples — marriage for straight couples and “domestic partnerships” for Gay and Lesbian couples — were also unequal, and therefore violated the state’s constitutional guarantees of liberty, privacy and equal protection of the laws.
It was a ruling I must confess I didn’t see coming. Only one other state supreme court ruling on this highly contentious issue — Massachusetts’, in 2003 — had read its state’s constitution as requiring that Queer couples have access to marriage on exactly the same basis as straight couples. I had assumed that California’s high court would come out where the courts of Vermont and New Jersey had — agreeing that the state had to grant some form of legal recognition to same-sex couples but didn’t have to call it “marriage” — and would rule further that by passing domestic partnership legislation (first, in skeletal form, in 1999, and regularly amended since then to add more rights and responsibilities, until now California’s registered domestic partners have virtually all the same ones as married couples) the state had fulfilled its responsibilities to Queer couples and therefore the cases challenging the marriage laws were essentially moot.
There were several reasons why I didn’t think the California Supreme Court would rule for marriage equality. First, ever since a highly partisan and fear-driven campaign led the state’s voters to remove Jerry Brown’s three appointees to the court — Rose Bird, Cruz Reynoso and Joseph Grodin — in 1986, the court has been dominated by Republicans. Only one of the current justices was appointed by a Democrat. Most of them were picked by Republican governors George Deukmejian and Pete Wilson, both of whom vetoed bills to protect Queer people from employment discrimination. (Wilson eventually signed a weak version of the bill, and Democrat Gray Davis signed the full-strength version in 1999.). During the oral arguments on the case, most of the justices’ questions to the attorneys centered around the domestic partnership law; the lawyers arguing for marriage equality were asked more than once why domestic partnerships weren’t good enough. Finally, in its initial encounter with the case, the court had permanently nullified the same-sex marriages performed without state authorization by the City and County of San Francisco in February and March 2004 — which, to say the least, wasn’t a good sign that they’d ultimately find the state’s ban on same-sex marriage unconstitutional.
Instead, in what one of his opponents on the court, Justice Marvin Baxter, called “a piece of legal jujitsu.” George argued that the very passage of the domestic partnership legislation indicated that there’d been a sea change in California’s attitude towards Queer people and that, therefore, a marriage law that excluded them based on old-fashioned fears and prejudices could no longer stand. “[I]n contrast to earlier times,” George wrote, “our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legal basis upon which to deny or withhold legal rights.”
In arguing this way, George was taking a page from Earl Warren’s playbook. Just as Warren had argued that the U.S. Supreme Court’s original authorization of racial segregation in Plessy v. Ferguson, the 1896 case overridden in Brown, had been based on an assumption that Black people were genetically inferior to whites — a piece of pseudo-scientific nonsense that by 1954 all but a handful of diehard racists had realized was wrong— so George said that we now know so much more about Queer people than we did in 1849 (when California wrote its first marriage law) or even in 1977 (when the state passed a “clarification” of the marriage laws specifying that marriage was between one man and one woman).
George’s argument is that, if the state has one system for recognizing the relationships of opposite-sex couples and another for same-sex couples, it’s sending a message that Queer people are not as good as straight people — just as Earl Warren argued that having separate schools for a white majority and a Black minority sent a message that Blacks were not as good as whites. “[R}etaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples,” George wrote, “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.”
In addition to invalidating the state’s ban on same-sex marriage on at least three grounds in the state constitution, George and the other three justices who joined his opinion also said that government classifications based on sexual orientation should be subject to ‘strict scrutiny.” This is the trifecta, the big enchilada, of civil rights law: the strongest protection the justice system affords. Under the usual test, a law that treats different groups of people differently can only be struck down if the court finds no “rational basis” for the classification.
Under “strict scrutiny,” the court can uphold a classification only if it finds that it serves a “compelling state interest” and that no other, less restrictive policy will fulfill that interest. In ruling that sexual orientation is a ‘suspect classification” deserving of “strict scrutiny,” the California Supreme Court has gone way beyond the U.S. Supreme Court, which threw out sodomy laws on a “rational basis” test and has never given “strict scrutiny” to classifications based on gender (which explains their recent hateful rulings against women on employment discrimination and reproductive choice), much less sexual orientation.
Not surprisingly, the radical Right has gone ballistic about the decision. One of the more peculiar talking points on Right-wing radio against it has been that, since the decision was made by a closely divided 4-3 vote, in essence one justice decided that Californians must accept same-sex marriage (but which one? Are these people so far gone they can’t even count to four?) in defiance of the will they expressed at the polls in March 2000, when the state’s voters overwhelmingly passed Proposition 22. This initiative enacted Section 308.5 of the California Family Code, which reiterated California’s previous definition of marriage as the union of one man and one woman. As with most other initiatives, this one could be amended only by a vote of the people.
In his dissent, Justice Marvin Baxter claimed the court majority “gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. … [T]he majority suggests that by enacting other statutes which do provide substantial rights to Gays and Lesbians — including domestic partnership rights which, under section 308.5, the Legislature could not call ‘marriage’ — the Legislature has given ‘explicit official recognition’ … to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5. … [T]he majority’s analysis has … given the Legislature, indirectly, a power it does not otherwise possess to thwart the People’s express legislative will.”
Of course, under California law, the people are the final arbiters of what the state constitution contains. Unless they pass something so viciously arbitrary that it violates the federal Constitution — as they did when they attempted to repeal the state’s laws against discrimination in housing on the basis of race in 1964, or when they voted for Proposition 187, a slashing attack on the rights of Latino immigrants, in 1994 — they can rewrite their constitution any way they like. And, thanks to the resources and grim determination of the radical Right, they’ll have their chance on November 4. Unlike Massachusetts, whose cumbersome process for amending its constitution (a proposed amendment has to receive 25 percent of the vote in each house of the legislature in two consecutive sessions and then the people get to vote on it) gave marriage equality advocates plenty of chances to block any attempt to reverse the Massachusetts Supreme Court’s landmark 2003 decision, California’s constitution can be amended any time people have enough money and enough will to get a proposal on the ballot.
When he spoke at the 2007 “Community Celebration” rally as part of San Diego’s Lesbian, Gay, Bisexual, Transgender Pride Event, Seth Kilbourn, political director of the Queer-rights lobby Equality California, predicted that when the anti-marriage initiative finally got on the California ballot, it would be the battle royal that would probably decide the fate of marriage equality nationwide for decades to come. I was skeptical then, but I believe it now. The California Supreme Court has basically set the timing of the marriage battle in such a way that, for the first time in U.S. history, voters of a state will have a chance to weigh in on whether same-sex marriages should be allowed while same-sex marriages are already happening. Either California voters will endorse bigotry against Queers — as they did in 2000 when they passed Proposition 22 (and previously had against African-Americans in 1964 and Latinos in 1994) — or they will allow same-sex marriages to take hold and the opposition to evaporate, as most of it has in Massachusetts now that Queers have been getting married there for so long it seems normal.
Another jolting irony of the May 15 decision occurs towards the end, in Justice Carol Corrigan’s dissent. “To make the case for a constitutional violation,” she wrote, “the majority distorts and diminishes the historic achievements of the DPA [Domestic Partnership Act], and the efforts of those who worked so diligently to pass it into law.” The irony is that “those who worked so diligently to pass it into law” never regarded domestic partnerships as their final goal, but only as a way station towards the true equality of marriage. We know that because they said so (and, what’s more, their opponents, particularly the Right-wing Mafiosi of talk radio, knew they said so because they quoted them and played tapes of them saying so). Seth Kilbourn said so in his speech in San Diego on July 15, 2007, when — even though his employers had lobbied heavily both to get the legislature to pass domestic partnerships and gradually to expand the rights and responsibility they conferred — he denounced the institution they’d helped to create in terms almost identical with Ronald George’s.
“The state of California has reduced the inequality by passing domestic-partner legislation, which we worked hard for,” Kilbourn said, “but domestic partnerships and marriage will always be unequal in terms of rights and benefits, status and recognition, and dignity and respect. There are only two reasons to have two different systems, one for Gay people and one for everybody else. Either the systems are unequal in terms of the protections they provide — which they are — or there’s a general acceptance that one group is somehow less worthy than the other. No matter how you feel about the institution of marriage, how can we accept inequality in the law, and accept the notion that Gay, Lesbian, Bisexual and Transgender Americans are somehow ‘less than’? The difference between calling Mom to say, ‘Hey, I’m getting domestic-partnered,’ and, ‘Hey, I’m getting married,’ is what we need to end, not only in law but in terms of our families, our loved ones and the guy in the next cubicle.”
It becomes even more ironic when you realize that not only has the radical Right fought against same-sex marriage but against every legal advance Queer people have made in California and throughout the United States. They fought against the repeal of laws making Gay and Lesbian sex acts illegal. They fought against anti-discrimination and anti-hate crimes legislation. They fought tooth and nail against the domestic partnership bill they now say we should be satisfied with — indeed, they went to the California Supreme Court themselves to have domestic partnerships declared illegal as a violation of Proposition 22, and the justices quite properly told them to get stuffed.
The court said then what they’ve said now: that domestic partnerships are not marriages and therefore the limits on marriage don’t apply. Now they’ve said that when 61.4 percent of California’s voters took away out right to marry our partners, they violated our rights as a protected minority — and, given that (unlike federal judges) they have to be confirmed in office by the people very 12 years, and that 22 years ago three California Supreme Court justices lost their jobs as a result of a vicious, hateful campaign sponsored by the radical Right, the courage of Ronald George and his brethren and sistren is truly remarkable.
So now we have marriage — starting, most likely, in mid-June and lasting either until November 4 or longer, if we can make it so … and in the face of a well-organized and well-funded effort to take it away from us, we will have to work our asses off from now until November to persuade enough of our fellow Californians to let us keep the right to marry. It’s been an unexpectedly wrenching issue for me personally, because for the first time in my life I’m actually contemplating marriage. I didn’t when I lived with a woman for five years (1978 to 1982) before I came out as Gay because we both subscribed to the then-trendy idea that marriage was an outmoded tradition we were better off without. I’ve been in a committed relationship with a man for 13 years, and when I called him the morning of May 15 to let him know the good news, it was a race to see which of us would ask the other first. He won.
There’s no question in my mind that I am going to marry the man I love and wish to share the rest of my life with. But I’m scared. I’ve known all too many straight people who’ve told me that marrying their long-time partners changed their relationships in unpredictable ways. All my life I’ve seen movies and heard jokes about the license and the ring, and never having been legally married before (as a lot of my Queer friends were) I’m entering terra incognita here. But my partner and I will be married as soon as we can, and we will take whatever comes between us and make it work one day at a time the way we have for over 13 years — and for the rest of our time on earth we’ll be able proudly to display the rings on those fingers and say, “We’re married.”