State Supreme Court Upholds Queer Marriage Rights
4-3 Decision Invalidates Prop. 22; Popular Vote Likely
news analysis by MARK GABRISH CONLAN
Copyright © 2008 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
The California Supreme Court announced on May 15 that, by a 4-3 margin, it had decided one of the most controversial and closely watched cases in its history — whether the state’s definition of marriage as the union of one man and one woman violates the rights of Queer people in general and same-sex couples in particular under the California constitution. The court majority not only ruled that same-sex couples have a legal right to marry under the state’s constitutional guarantees of equal protection, liberty and privacy, it also declared that Queers deserve the highest level of protection against discrimination, “strict scrutiny,” a legal criterion California has previously granted only the bases of race, gender and religion (and the federal courts almost never on anything but race).
This sweeping court victory is tempered by the likelihood that California’s voters will have a chance to reverse it at the polls this November 4. In order to forestall any attempt to legalize same-sex marriage in California, either at the legislative or the court level, opponents of marriage equality last March began a petition drive to amend the state’s constitution to lock into place the state’s current legal definition of marriage as between one man and one woman. Despite an effort by supporters of marriage equality to keep people from signing this petition, its backers turned 1.1 million signatures into the California secretary of state’s office — a comfortable margin above the 753,000 they need to get on the ballot. The last time California voters had a chance to decide whether to recognize same-sex marriage, in March 2000, they passed Proposition 22 by an overwhelming 22-point majority. This initiative defined marriage in California as the union of one man and one woman and forbade the state from recognizing same-sex marriages performed elsewhere.
If the new anti-marriage initiative, whose aim is to put the language of Proposition 22 into the California constitution and thereby nullify the new ruling, makes it to the November 4 ballot, California voters will have a rare opportunity to vote the same-sex marriage issue up or down while marriage equality is an accomplished fact. The court’s decision requires county clerks throughout California to begin issuing marriage licenses to same-sex couples on an equal basis within 30 days — so it’s probable Gay and Lesbian couples will already have taken advantage of the court’s ruling and be legally married before the November 4 vote. This hasn’t happened anywhere else in the U.S. Only one other state, Massachusetts, has granted same-sex couples full marriage equality — also through a ruling by the state’s highest court — and attempts to reverse that ruling by amending the Massachusetts state constitution failed because of the state’s complex mechanism for constitutional amendment, the success of pro-marriage legislators in blocking the issue and the overreaching of marriage opponents, who turned down a compromise that would have set up a civil union registry in Massachusetts and insisted that the state offer no recognition to Gay and Lesbian couples at all.
The California case turned largely on the state’s law allowing same-sex couples to register as domestic partnerships. First passed in 1999, the domestic partner law has been amended so that it offers couples who register under its provision mutual rights and responsibilities almost identical to those available to heterosexual couples through marriage. “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 and raise children does not depend on the individual’s sexual orientation,” wrote California Supreme Court Chief Justice Ronald George in the majority opinion, “and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis on which to deny or withhold legal rights.”
By passing a separate domestic partnership law for same-sex couples while denying them access to marriage, George wrote, California “has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership).” Does this “distinction” prejudice the rights of same-sex couples and Queer individuals seeking such a relationship? George said yes. “Denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples,” he wrote. “Because of the wide 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.”
George also answered one of the most common objections to legal recognition of same-sex marriage: the argument that allowing same-sex couples to marry will somehow cheapen the institution for opposite-sex couples as well. “Permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of marriage,” he wrote. “Opposite-sex couples will continue to enjoy precisely the same constitutional rights they traditionally have possessed, unimpaired by our recognition that this basic civil right is applicable, as well, to Gay individuals and same-sex couples.”
According to George, the bottom line is that there is no “compelling state interest” in keeping marriage restricted to opposite-sex couples. Indeed, he argued that under the state’s constitution, the state’s interest runs in exactly the opposite direction. “Retaining the definition 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 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,” he wrote. “Under these circumstances … we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.”
Citing previous decisions that ended California’s ban on interracial marriage (in 1948, 19 years before the U.S. Supreme Court followed suit nationwide) and struck down a ban on women working as bartenders, George wrote, “[A]n individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights. In light of this recognition, sections 1 and 7 [the guarantees of liberty and privacy, respectively] of the California Constitution cannot properly be interpreted to withhold from Gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one’s choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals.”
The range and complexity of the issue the California Supreme Court ruled on is evident in the sheer size of the download the court made available on its Web site: 172 pages. George’s majority opinion takes up 121 pages, followed by a six-page concurring opinion by Justice Joyce Kennard, a 26-page dissent by Justice Marvin Baxter (joined by Justice Ming Chin) and another dissent, this one eight pages long, by Justice Carol Corrigan. The other nine pages merely list all the attorneys, law firms and public agencies involved in the litigation — usually a routine task, but complicated here by the many amicus curiae (“friend of the court”) briefs filed on both sides.
“I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry,” Justice Baxter said in his dissent. “In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error. Only one other American state [Massachusetts] recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law [Proposition 22] — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights the 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.”
Baxter called the majority’s ruling an “exercise in legal jujitsu” and said it used the state legislature’s passage of domestic partnerships as an excuse “to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference.” He pointed out that throughout the state’s history, all its laws relating to marriage assumed — even when they didn’t say so explicitly — that marriage was between partners of opposite sexes. In a footnote, he said that the Massachusetts Supreme Court, when it struck down its own state’s ban on same-sex marriage, “did not confront, as we do, a law, recently adopted by the voters, that gave explicit voice to a prevailing community standard in favor of retaining the traditional man-woman definition of marriage.”
Attacking the claim made both by marriage equality advocates and the court majority that striking down the ban on same-sex marriage doesn’t create a new civil rights — but simply opens the right of marriage to people previously excluded from it — Baxter wrote, “[P]laintiffs seek, and the majority grants, a new right to same-sex marriage that only recently has been urged upon our social and legal system. Because civil marriage is an institution historically defined as the legal union of a man and a woman, plaintiffs could not succeed except by convincing this court to insert in our Constitution an altered and expanded definition of marriage — one that includes same-sex partnerships for the first time. By accepting that invitation, the majority places this controversial issue beyond the realm of legislative debate and substitutes its own judgment in the matter for the considered wisdom of the People and their elected representatives.”
Previewing the arguments marriage opponents are likely to make in an election campaign, Baxter also wrote, “Who can say that, in ten, fifteen or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”(He did add immediately afterwards, “In no way do I equate same-sex unions with incestuous and polygamous relationships as a matter of social policy or social acceptance.”)
Baxter also argued that the ban on same-sex marriage should not be judged under “strict scrutiny” because there was no evidence that the people who wrote California’s original marriage laws intended to discriminate against Queer people as a class. And he said that Queers in general don’t fall under the legal definition of a “suspect class” because “the need for special constitutional protection arises from the political impotence of an insular and disfavored group … [I]n contemporary times at least, the Gay and Lesbian community does not lack political power.”
Corrigan’s dissent cited the court’s previous ruling upholding the domestic partnership statute against a legal challenge as saying that “the chief goal of the DPA [California Domestic Partner Rights and Responsibilities Act of 2003] is to equalize the status of registered domestic partners and married couples.” “In this case, however, the majority fails to honor that goal,” she wrote. “Instead of recognizing the equality conferred by the Legislature, the majority denigrates domestic partnership as ‘only a novel alternative designation … constituting significantly unequal treatment.’ … The majority’s narrow and inaccurate assertions are just the opposite of what the Legislature intended.”
Ironically, Corrigan went on to say, “To make its case for a constitutional violation, the majority distorts and diminishes the historic achievements of the DPA, and the efforts of those who worked so diligently to pass it into law.” The irony is that Equality California, the principal lobbying group which worked with the legislature to pass the DPA, and just about every other individual and organization from the Queer community involved in the struggle for domestic partner legislation, made it clear from the get-go — at least when they spoke in public to organize Queer people to support the legislation — that they regarded it at best as a second-class status and only a compromise on the way to their true goal, marriage.