The Los Angeles Times has published an interesting interview with California Chief Justice Ronald George, author of the marriage decision. Some excerpts:
In the days leading up to the California Supreme Court's historic same-sex marriage ruling Thursday, the decision "weighed most heavily" on Chief Justice Ronald M. George — more so, he said, than any previous case in his nearly 17 years on the court.
The court was poised 4 to 3 not only to legalize same-sex marriage but also to extend to sexual orientation the same broad protections against bias previously saved for race, gender and religion. The decision went further than any other state high court's and would stun legal scholars, who have long characterized George and his court as cautious and middle of the road.
But as he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning "No Negro" or "No colored" left "quite an indelible impression on me," he recalled in a wide-ranging interview Friday.
"I think," he concluded, "there are times when doing the right thing means not playing it safe."
Yet he described his thinking on the constitutional status of state marriage laws as more of an evolution than an epiphany, the result of his reading and long discussions with staff lawyers.
As he sometimes does with the most incendiary cases, George assigned the majority opinion to himself. He wrote and rewrote, poring over draft after draft. Each word change had to be approved by the other three justices joining him in the majority. Even the likely dissenters had to be told in "pink slips" of every word change.
On Wednesday, the long-awaited ruling was finally ready.
Court Clerk Fritz Ohlrich locked up stacks of the fat, stapled court opinions in his office to protect against leaks, and George's staff asked that security be beefed up. A fellow justice told George she would be at her desk in the morning because she wanted "to be part of history." . . .
George, who grew up in Los Angeles, said he counts gays among his friends. Four years ago, he peered out his chambers' windows across from San Francisco City Hall to watch gay couples lining up to marry. He saw the showers of rice, the popping of champagne corks, the euphoria of the couples. . . .
Once he took up the constitutional challenge, he said he did not permit any consideration of political fallout.
"I am very fatalistic about these things," he said. "If you worry, always looking over your shoulders, then maybe it's time to hang up your robe." . . . Asked whether he thought most Californians would accept the marriage ruling, George said flatly: "I really don't know."
He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.
California's decision, in a case called Perez vs. Sharp, preceded the U.S. Supreme Court's action on the issue by 19 years. Even after that ruling, Californians passed an initiative that would permit racial discrimination in housing. The state high court again responded by overturning the law, George said.
Rather than ignoring voters, "what you are doing is applying the Constitution, the ultimate expression of the people's will," George said.
By the time of the same-sex marriage oral argument in March, three other justices had tentatively decided to join George's opinion. They are Justices Joyce L. Kennard, Kathryn Mickle Werdegar and (sole Democrat) Carlos R. Moreno, the court's more liberal wing. . . .
Relations among the justices remained warm and cordial. George said he was even pleased with the dissents, which contended that a decision on same-sex marriage should be made by the people, not the court.
Some judges in other states that had considered same-sex marriage had written in ways that were "homophobic" and demeaning to lesbians and gays, statements "that you don't find" in California's dissenting opinions, George said. They were signed by Justices Marvin Baxter, Ming Chin and Carol A. Corrigan. . . .
George's reputation for caution is based on the court's tendency, under him, to decide cases narrowly, refusing to reach issues not necessary to the case at hand. Advocates thrust the central constitutional question of equality for gay people on the court; there was no way to avoid it. . . .
Santa Clara University law professor Gerald Uelmen, who has closely followed George's court tenure, said "the biggest surprise" of the marriage ruling was that George favored it. Uelmen said George must have done "some real soul searching."
The "very carefully written opinion" reflects that George "is very sensitive to how this will be perceived," Uelmen said. "He realized that this more than any other thing he does as chief justice will define his legacy. He'll certainly take a good deal of political heat over this."
Mathew Staver, founder of Liberty Counsel, said he had long expected George to vote against same-sex marriage.
"His change from where I thought he would be is baffling," said Staver, whose group promotes traditional marriage. . . .
[George] went home Thursday night drained and discovered a card left by friends at his San Francisco apartment. It was a Japanese watercolor of a branch with red berries. His friends had written "Congratulations!" inside.
"Why not go out on a limb?" the greeting on the card read.
It's a real shame that California is ruled by this eccentric old fart.
When a judge decides a case because of his feelings, it doesn't matter what political party he belongs to. It's still wrong.
People keep saying this, but I don't see it in the article.
The dismissal of sex discrimination as linked to this case is a very interesting one. It undermines the trains of thought of a lot of those who are against gay marriage. The characterisation of it as orientation-linked discrimination is indeed correct. With that in mind the most earth-shattering part of the ruling must be considered: discrimination against a person is a "suspect classification".
As others have pointed out, this is the really, really, really important part of the ruling. It will have an effect vastly more widespread than simply ruling gay marriage legal on grounds of orientation-based discrimination and equal protection. For the LGBT community if SCOTUS takes a case brought on equivalent grounds and rules on whether orientation-based discrimination is a suspect classification that ruling would be as important to them as the coming ruling in District of Columbia vs Heller will be to second amendment jurisprudence.
The argument that opponents of the ruling have to refute is not that gay marriage is legal. The argument that opponents of the ruling have to refute is that orientation-based discrimination is a suspect classification. One leads perfectly logically to the other.
When the case goes against you, the judge is following his feelings.
When the case goes for you, the judge is following the law.
I read a very nice story about a judge who felt he was following the precepts of the (state) Constitution, and was understanding of the dissenters as well. Clearly, others read the sotry they wanted to read.
That is the essence of the judgment. As others point out, the level of granularity/specificity with which you view rights determines whether there is an equal protection argument.
Is there a 'right' to same-sex marriage? (Glucksberg history and tradition analysis)
Or is there a right to marriage, that should not be denied to homosexuals because that would be violative of equal protection (suspect class- history of discrimination, immutability, political powerlessness).
Presumably the same liberty that would be denied by a state's refusal to recognize an interracial marriage.
Some of the worst activist justices are so-called "moderate Republicans." Earl Warren, the big man of activism himself, was one. Justice Brennan and Justice Stevens, were also so-called "moderate Republicans." That's until they became liberal icons.
I think it shows a remarkable understanding of our culture. The more the law is framed to stigmatize gay people by giving them sub-equal status (their relationships don't count, their military records ignored, etc.), the more society looks segregated.
I am sure there are PLENTY of people who would love to impose a Straights-Only Drinking Fountain policy.
That is not the law, that is cultural opinion based on personal experience. Beyond that, comparing the issue of same-sex marriage to Jim Crow is both misguided in the intent of the comparison, and offensive to the sufferings of the people who lived under those rules (Jim Crow). My wife and I are friends with a lesbian couple who receive domestic partner benefits, are widely successfully at their careers, live together in a luxury home, and face no social shunning. To compare their situation of being unable to obtain a state-licensed marriage with African-Americans who were forced to use lesser quality public services, and faced violent recrimination if they did not, is obscene. The issue of earlier bans of interracial marriage also had nothing to do with the institution of marriage itself, it was part of a broad, racist effort to keep races separate.
People, even the class of God's-made-flesh known to us mere mortals as lawyers and judges, are taking an extremely elastic view of same-sex marriage vis-a-vie a Civil Rights issue, which is essentially boiling down to 'let's totally not make people sad :('. Same-sex marriage is a cultural issue period, let the people of their respective states vote as equals in regards to their views of the issue; let's stop this charade of the judiciary offering what are essentially thinly-guised opinion columns and dressing it up as 'pure, objective law'. Same-sex marriage would probably be just as successful via the ballot box as the courts in the long run (possibly even the short-term), and it would completely eliminate the acrimony over the 'Here's my cultural opinion that I'm spinning as law' issue.
Fundamentally hateful people have fundamentally hateful reactions to everything they read that doesn't accord with their fundamental hatreds.
This is not surprising ... only sad.
I'm just surprised that no one's seized yet on his immigrant parents as an explanation for the decision. Evidently, he's not a "full-blooded American."
I grew up in the segregated South and never saw any signs like that. It was phrased a little more delicately -- "Whites Only" (and there were "Colored Only" also) or "We reserve the right to refuse service to anyone." Means the same thing, I'll grant you, but it makes you wonder about the old boy's memory. So is this about gays being refused service at lunch counters?
"One man one woman" and "procreative" being common elements of the "definition of marriage" brought up on the VC over the past few years, I'm not sure how anyone can not liken the current legal definition of marriage as essentially "straights only". I had thought the social conservatives were pretty much open about their belief that marriage is a heterosexual institution.
Presumably that would be Niwdog's Law.
...but some of my best friends are gay!
Just because Brown v. Board was the right thing to do (not to mention Loving), doesn't mean it was contitutionally correct.
Those who fought against the abolition of slavery, and the integration of the races, were amazingly deft in their reasoning; first, the Constition, then, the scriptures. Most have since come around (even Wallace did). America was left, then the pariah state of South Africa, now racism is universally condemned. If you look at the trend lines both in other Western countries and within the United States, discrimination against sexual orientation is passing as well.
But you can always be the bigoted grandfather/grandmother they don't like to invite over for Thanksgiving.
...but some of my best friends are gay!
Just because Brown v. Board was the right thing to do (not to mention Loving), doesn't mean it was contitutionally correct.
Those who fought against the abolition of slavery, and the integration of the races, were amazingly deft in their reasoning; first, the Constition, then, the scriptures. Most have since come around (even Wallace did). America was left, then the pariah state of South Africa, now racism is universally condemned. If you look at the trend lines both in other Western countries and within the United States, discrimination against sexual orientation is passing as well.
But you can always be the bigoted grandfather/grandmother they don't like to invite over for Thanksgiving.
The liberty of not being discriminated against by the government on the grounds of sexual orientation. The court has come to the conclusion that this liberty is so important that it demands a very, very high hurdle over which laws purporting to discriminate on the grounds of sexual orientation have to pass.
People have raised the issue of sexual orientation not being "fundamental" to someone, but that argument is destroyed by, as the opinion says, the protections afforded to religion. I am not aware of any studies proposing a genetic component to deciding which religion a person follows! There certainly are studies suggesting some genetic component to deciding which sexual orientation a person is.
Does discrimination on the grounds of orientation deserve the label of a "suspect classification"? That is what this opinion can be boiled down to. If it does deserve that label then the gay marriage part of the ruling and many, many other consequences flow logically and correctly.
My own views on the subject are that such discrimination probably does deserve the label of a suspect classification and the protections which are therefore afforded. However I also believe that the state should not be in the business of marriage at all. Marriage is between a man and a woman. That is the correct definition. If the state wants to legislate for the regulation of partnerships between two people that should be a completely separate matter from marriage. UK law has marriage for a man and woman and civil partnerships for homosexuals. Better for civil partnerships to be recognised by the state and extended to all individuals, regardless of gender, and marriage to be in the sphere of religion.
No, for several reasons. First, because these standards of review are found nowhere in the Constitution and are a creation of the Court. Either a legislature has a power to do something, or that power is prohibited by the Constitution. Balancing tests created by the Court always end up being decided based on how so-called Moderate Justice X felt as he got out of bed that day.
Second, even if you accept the legitimacy of these idiotic standards of review, "suspect classification" wouldn't apply to homosexuals:
1. Homosexuality is not "immutable", as there is no determined scientific opinion as to the degree to which genetics and/or environment plays a role in the creation of the abnormality in people.
2. There is a history of "discrimination", but only on the sense that marriage has been understood since its creation thousands of years ago to be an institution for man and women to raise a family. Otherwise, homosexuals have not been subject to the historical discrimination that others have experienced, like blacks.
3. Homosexuals are not politically impotent. They OWN the elite, as most lawyers, academics, and policymakers are sympathtic to the homosexual agenda. Even while voters routinely reject homosexual marraige at the ballot-box, the fact that these issues are being proposed and rejected by the democratic populace shows that homosexuals' issues are being aired.
4. Homosexuals are a discrete and insular minority, but not in many areas of the country that are most sympathetic to the homosexual agenda, such as San Francisco and New York City.
So "suspect classification" does not apply here, if you accept that extra-constitutional standards crap.
Um, I'm pretty sure Brennan was a Democrat.
Err, yes, but he was appointed by Ike. My bad. ;)
No one's liberty is threatened by the state refusing to do something. Liberty is threatened when the state takes affirmative steps, such as fining you, or arresting you.
This is so wrong, I don't know where to begin. Maybe everyone's favorite Nazis? When the US liberated people from concentration camps, all the gays were sent to other camps or prisons, not freed. Then there's the history of lobotomizing gays to cure them of their orientation, not to mention electrocution and other tortures. Add in the McCarthy era persecution of gays, and the need to even have the Lawrence v. Texas decision decades after the Stonewall riots, and it pretty clearly proves that you're completely delusional.
So under your theory, it would be fine for the government to simply not recognize interracial marriages, so long as they didn't fine or arrest those who participated in them?
This statement requires a special kind of ignorance, an utter lack of empathy that is so willing to see "the gays" as a shadowy elite that it completely ignores the deep cultural and historical animus that homosexuality confronted throughout almost all of human history.
But the writer apparently has heard of a nice, successful lesbian couple, so that completely negates that!
DU
The fact that homosexuality was considered a behavior abnormality does not mean there was a discrimination and prosecution.
Please provide facts of bad government sponsored legal actions or bigotry against gays after homosexuality was recognized as a normal human condition.