"[T]o the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional." The opinion is here. The vote is 4-3, which Chief Justice George joined by Justices Kennard, Werdegar, and Moreno in the majority, and Justices Baxter, Chin, and Corrigan dissenting on the key issue. (Justice Corrigan's dissent seems to suggest that some form of domestic partnership is constitutionally mandated, but that there's no constitutional requirement that it be labeled "marriage"; but the dissent doesn't seem to be entirely clear on this, perhaps precisely because domestic partnership is provided and the issue of whether it's mandated is thus not squarely on the table.)
The opinion is entirely based on claims under the California Constitution, and does not rely on federal constitutional claims. This seems that the U.S. Supreme Court cannot review this; and it also means that a state constitutional amendment -- which seems likely to be on the ballot this November -- could overturn the decision.
Here's the court's reasoning, in a nutshell:
1. The California Constitution's Due Process Clause and Privacy Clause (there's an explicit one in California) secure a right to marry, which extends to same-sex marriages as well as opposite-sex marriages. The limit of marriage to opposite-sex couples thus must be reviewed under strict scrutiny (i.e., must be narrowly tailored to a compelling state interest).
2. The California Constitution's Equal Protection Clause treats sexual orientation as a suspect classification. Any discrimination against gays and lesbians thus must be reviewed under strict scrutiny, and the opposite-sex-only rule is indeed such a discrimination.
3. The opposite-sex-marriage-only rule does not constitute presumptively impermissible sex discrimination, only sexual orientation discrimination.
4. The ban on same-sex marriage can't pass muster under strict scrutiny (pretty much a foregone conclusion, given how demanding strict scrutiny generally is).
More commentary soon, I hope.
Related Posts (on one page):
- The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
- The California Legislature's Enactment of Same-Sex Marriage:
- "Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
- Congratulations to California Same-Sex Married Couples:
- The Slippery Slope to Same-Sex Marriage:
- California Supreme Court Holds That California Must Recognize Same-Sex Marriage:
bottom of page 5, the last sentence, "an historical".
I feel better now.
That should please the federalists among us.
One thing to make me happy about leaving Washington (whose Supremes refused to legalize gay marriage) for California.
Now to read the actual opinion...
I checked the Secretary of State's list of ballot propositions, and it looks like there is one constitutional amendment that could reverse it in November. It is listed as pending signature verification, and the text only says that it limits marriage to a man and a woman. All the other initiatives, including those that would prohibit registered domestic partnerships, seem to have failed the signature count.
My understanding is that the senior language, if not struck, takes precedence, and so if the initiative passes (and I hope the people of California are smarter than that), it will be invalidated by the pre-existing language of the California Constitution.
It is notable that on the policy question, the Court appears unanimously "gay-friendly."
The question the Court answers is narrow: given Cali's domestic partnership statute, all that's at stake is the name "marriage." DPs already have virtually every other right, duty and obligations as spouses.
I wonder, given that fact, whether it was not tactical error for the plaitiffs to press this case. In a state like California, where a well-funded and duplicitous referendum can easily upend not only this decision, but the DP statutes themselves, have the plaintiffs not invited a furious backlash?
Of all the opinions, while I have lot of sympathy for the majority, I'm drawn to Justice COrrigan's most of all, largely due to the concerns I raise inthe previous para. Justice Bazter's dissent is, to me, unconvincing.
You are being uncharitable. Perhaps UW2L has already considered the reasoning at issue and has determined that said reasoning mandates this result (which, perhaps, might happily coincide with the result that UW2L thinks is socially proper as well). Nothing UW2L said made clear that UW2L thinks that this was the right result regardless of the legislature/executive will.
And even if UW2L did think that this was a good result regardless of the legislative/executive will, this comment, for the reasons noted above, certainly would not be the 'perfect example of the danger of this activist groupthink'. That's just being warrantlessly petulant.
Backlash is right. With the DP statutes in CA, there is almost no practical benefit from renaming a DP 'marriage', is there? At least on the state level. But the CA Sup Ct has injected this issue back into politics, in a presidential election year. And it won't help the Dem nominee in the swing states. So they may have won the battle, but lost the war.
I didn't necessarily disagree with this opinion. But the whole thing seems a bit stretched to me, at least philosophically.
I liked the dissent, because he directly addressed the racial issue. He also directly addressed the absurd reasoning the majority wanted to apply to incest or polygamy. If there is a "fundamental right" to marry, then incestuous marriage or polygamous would also be covered by the same "fundamental right".
It will be anti-Gay marriage proponents who will have to argue that the civil right to marry someone of the same gender/sex should be taken away. The people will not do it. Support for Gay marriage has been increasing and only a pre-existing ban would have stopped it.
Now watch the left argue for the sanctity of marriage and go out of the way to deny such a civil right to polygamous and incestuous couples/groups using all the arguments that the right used against gay marriage (and the left argued against).
The people who wrote the Knight initiative as a statute instead of a constitutional amendment were fools.
You will be shocked how many times you will see where they accidentally left out a citation. As in, you will see it say "[citation]" or similar words. For instance, on page 47 of the pdf:
> more than one, shall be consistent with the restrictions of the Federal Constitution.’ [Citations.]
Or, page 55:
> The policy favoring marriage is ‘rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities in organized society.’ [Citation.]
I stopped counting at like 4 of them. And i definitely saw at least one in the dissent/concurrance.
So, um, guys, you need to go back and finish your draft, okay?
To begin with, the decision is idiotic. If marriage is not linked to procreation, then there is absolutely no reason for the State to issue licenses at all. If marriage is simply about establishing a relationship with someone else, then there is no reason for the State to maintain any control over marriage whatsoever.
Irreversible damage has been done to this country. Any country that no longer respects the bedrock institution of society, no longer deserves my respect and support.
At more than one point in my life I took an oath to: "support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same". Today, I renounce that Oath. America is dead to me.
Love your conservative hysterics! Are you gonna move to Nevada?
Considering the decision is an interpretation of the California Constitution, not the U.S. Constitution, you might want to reconsider.
Oh! How about France?
Mind you, I think marriage will soon be a right for same-sex couples throughout the EU.
So I'm not sure where DeoVindice should go. Just that I won't miss him.
Perhaps I am making an unfair assumption about UW2L's comments, but it is no coincidence that those justices who vote in favor of gay marriage most likely favor gay marriage as a matter of personal policy preference. Those justices in dissent, it should be noted, are not always against gay marriage, they simply understand the proper role of the judiciary vis-a-vis the other branches. Many people who support gay marraige simply don't care what the California Constitution says (or any other state constitution for that matter). They simply want their personal policy preferences constitutionalized.
My country, right or wrong.
I assume the budget is funded for the additional "spouse" count as appropriate?
Does this mean that polygamy and incestuous relationships are now legal? Couldn't all the arguements for gay-marriage being legal now apply to these couples/groups?
So they don't cite any real-life practical differences between DP and marriage relating to property transfers, wills, adoptions, etc. things ruled primarily by state law. Practically on matters of state law, the plaintiffs really haven't won any new rights. All they've done is really rile up the far right, who were apathetic on McCain until now, and will vote in huge numbers for Republicans again. Again, battle won, war lost.
One more step toward revolution....I hope it comes within my lifetime.
???
Why is there a reason for the State to issue licenses BECAUSE marriage is linked to procreation? I'm pretty sure procreation predated the formation of California, or even of the nation-state concept.
Why doesn't separation of marriage and state make as much sense as separation of church and state?