California Supreme Court Holds That California Must Recognize Same-Sex Marriage:

"[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.

darelf:
I have nothing important to say... only this:

bottom of page 5, the last sentence, "an historical".

I feel better now.
5.15.2008 2:30pm
Tareeq (www):
I note that the word "California" is stuck to the word "Constitution" like glue throughout the opinion.

That should please the federalists among us.
5.15.2008 2:31pm
Tareeq (www):
Incidentally if anyone is having difficulty downloading the pdf, my co-blogger (Ex-Fed here) is hosting an MS-Word copy at the website to the right of my name.
5.15.2008 2:33pm
Cornellian (mail):
Can you consolidate the two comment threads so the discussion isn't duplicated?
5.15.2008 2:33pm
UW2L:
This is wonderful news. I honestly didn't think the court would go for it. I've never been so happy to have my cynicism proved wrong.

One thing to make me happy about leaving Washington (whose Supremes refused to legalize gay marriage) for California.

Now to read the actual opinion...
5.15.2008 2:37pm
Berkeley Student:
I also noticed that it was all about the state constitution. This will be important if it is reversed by ballot initiative, since this whole thing will probably start over again.

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.
5.15.2008 2:37pm
Pliny, the Elder (mail):
Unfortunately, the opinion persists in furthering bigotry against the polyamorous.
5.15.2008 2:42pm
williamandmaryalum (mail):
UW2L's comment is the perfect example of the danger of this activist groupthink: its the result that matters not the reasoning. When did the judiciary, and not the legislature/executive, become the source of social policy?
5.15.2008 2:43pm
John D (mail):
Grant this: the Justices aren't dummies. The initiative was discussed in the hearing. Since the initiative is not striking the language from the California Constitution upon which the decision is based, the newer language would be in conflict with the existing text.

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.
5.15.2008 2:46pm
Elliot Reed (mail):
Oof! I was hoping it would go the other way because that would kill the most persuasive (to the publi) argument for the amendment. Now I guess we'll have to resort to the way they screwed up the biologically—if you take the amendment's (incorrect) biological definitions of male and female seriously, anyone with XX male syndrome, Swyer Syndrome, androgen insensitivity syndrome, etc. is neither male nor female, and thus they can't marry anyone. That's actually a fair number of heterosexuals whose rights would be adversely impacted.
5.15.2008 2:48pm
abailey (mail):
re: w&malum, Maybe in 1948, when the same court issued Perez? Probably before.
5.15.2008 2:48pm
Tax Lawyer:
I just very quickly skimmed the intro, the conclusion, and the two dissents.

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.
5.15.2008 2:49pm
Tennessean (mail):
W&M:

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.
5.15.2008 2:50pm
Elliot Reed (mail):
Nope, I'm wrong about the biology thing. The one posted at VoteYesMarriage.com a few weeks ago had the biological definition but the one at the SecState's website didn't.
5.15.2008 2:51pm
Ken Hahn (mail):
It is time to recall some politicians disguised as judges.
5.15.2008 2:53pm
10ksnooker (mail):
The gifts keep on coming ...
5.15.2008 2:55pm
calmom:
Tax Lawyer,
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.
5.15.2008 2:58pm
darelf:
If "anything can happen" is true at all, it is more so in California. Nobody knows how this will play out. I'm constantly surprised by what legislation/initiatives get passed.

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".
5.15.2008 2:58pm
MadHatChemist:
he battle over Gay Marriage is over in California. People will not take away what gay in California will be able to do.

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.
5.15.2008 2:58pm
A.W. (mail):
Aside from any of the issues, try this. Press control-f and make adobe find all the instances of the word "[cita"

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?
5.15.2008 2:58pm
Brian G (mail) (www):
A political edict from the know-alls in robes. They should run for political office if they want to make policy.
5.15.2008 3:01pm
abailey (mail):
Here's the decision's text about why marriage and not just domestic partnerships:

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; 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 the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because 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. Third, because of the widespread 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. Finally, retaining the designation 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 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. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."
5.15.2008 3:01pm
DeoVindice:
That's it, I've had it.

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.
5.15.2008 3:02pm
Mark F. (mail):
I'm not so sure this decision won't stick. The MA decision did, and Californians are becoming more gay friendly every year. Anyway, expect a multi-million dollar battle this November--perhaps the biggest funded initiative campaign in history.
5.15.2008 3:03pm
Mark F. (mail):
DeoVindice:

Love your conservative hysterics! Are you gonna move to Nevada?
5.15.2008 3:05pm
AngelSong (mail):
DeoVindice, there is a significant flaw in your argument. In your claim that marriage is linked to procreation, you seem to imply that procreation is a necessary factor in the state's compelling interest. If that is the case, then how do you deal with heterosexual couples for which procreation can not and/or will not occur, such as seniors, the infertile, those who have had vasectomies or hysterectomies, etc?
5.15.2008 3:06pm
H Tuttle:
Once again I'm extremely glad I don't live in California - nor will I ever as like clinging to my guns and religion, which my state still allows (for the moment).
5.15.2008 3:07pm
Cornellian (mail):
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.

Considering the decision is an interpretation of the California Constitution, not the U.S. Constitution, you might want to reconsider.
5.15.2008 3:08pm
abailey (mail):
DeoVindice: no one's sorry to see you go. Enjoy your time in Saudi Arabia, Iran, Sudan, or some other country that reflects your views.
5.15.2008 3:09pm
John D (mail):
Maybe DeoVindice can move to Canada. No, strike that, same-sex couples can marry there too.

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.
5.15.2008 3:09pm
williamandmaryalum (mail):
Tennessean-

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.
5.15.2008 3:11pm
Tareeq (www):

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.


My country, right or wrong.
5.15.2008 3:11pm
Larry Sheldon:
I escaped from California some years ago (3rd generation native) so I am a little out of touch...

I assume the budget is funded for the additional "spouse" count as appropriate?
5.15.2008 3:11pm
Elliot Reed (mail):
So, any bets on how long it will take until somebody who knows something about California constitutional law posts? I predict it will be post infinity.
5.15.2008 3:11pm
Arvin (mail) (www):
You know, our economy is having problems. We've got two wars going on. Social Security is in trouble. Medicare is in trouble. There were two recent natural disasters in Burma and China, hundreds of thousands dead. Our students are getting less educated every year. And here we are, still wringing our hands over two guys who want to get married. Who cares???? No one says you have to get divorced if they get married. No one says that you're now less married. No one says you now have to marry someone of the same sex if you don't want to. Aren't there slightly more pressing issues to worry about?
5.15.2008 3:12pm
MadHatChemist:

Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.


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?
5.15.2008 3:12pm
Nitpicker:
A.W., perhaps you should read the California Style Manual, which is an accepted and the preferred form of citation in California. Using [Citation] to omit a citation within a quotation is permitted.
5.15.2008 3:12pm
calmom:
abailey,
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.
5.15.2008 3:12pm
Archon (mail):
Well stated DeoVindice.

One more step toward revolution....I hope it comes within my lifetime.
5.15.2008 3:14pm
Thoughtful (mail):
DeoVindice: "If marriage is not linked to procreation, then there is absolutely no reason for the State to issue licenses at all."

???

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?
5.15.2008 3:15pm