The (limited?) potential of the California marriage decision:

So the California Supreme Court did it. In an extraordinary, sophisticated, and far-reaching opinion (available here), the California Supreme Court held (1) that the fundamental right to marry protected by the state constitution includes the right of same-sex couples to marry, and (2) that exclusion of same-sex couples from marriage burdens their fundamental interest in marriage and amounts to sexual-orientation discrimination that cannot survive strict scrutiny under the state constitution's equal protection clause.

Both of these holdings depart in very significant ways from the same-sex marriage precedents so far, including the jurisprudentially questionable Massachusetts marriage decision in Goodridge from 2003. The California Supreme Court decision is by far the best and most well-reasoned opinion so far upholding same-sex marriage claims.

In this post I won't comprehensively analyze the court's opinion or all of its possible meanings. That has been done ably elsewhere, including by Eugene (see his informative and succinct initial post here) and by the invaluable Professor Arthur Leonard of New York Law School in several careful and detailed posts about the decision (see here, here, and here). The decision will have an impact in politics, culture, and law. In this post, I'll discuss the latter: the potential of the California decision to influence marriage litigation elsewhere.

The decision injects new life into the litigation strategy for obtaining same-sex marriage. It does so in the obvious way that litigants will be able to cite it as persuasive authority in other states for its ultimate holding that there is a constitutional mandate to allow gay couples to marry. But it does so additionally because the court that issued it is careful, cautious, and well-respected. More specifically, it could be influential in a case called Kerrigan v. Comm'r of Public Health pending before the state supreme court in Connecticut, which addresses the similar question whether the state may withhold the title of "marriage" to same-sex couples when the state has granted them all of the benefits of marriage under state law. Other states with civil unions -- New Hampshire, New Jersey, and Vermont -- can similarly expect renewed efforts to persuade their state courts to extend marriage itself to same-sex couples.

A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted all of the substantive rights of marriage to gay couples under the state's domestic partnership laws. The California court emphasized this point throughout the opinion, including in an unusual footnote in which it suggested in dicta that it might have returned the issue to the state legislature for initial consideration and resolution if the state hadn't previously enacted a comprehensive domestic partnership scheme for gay couples. Op. at 47 n. 27.

Having created nearly complete state recognition for gay couples, California was left to defend the notion that it was justified in withholding the word "marriage" from these families based solely on the traditional definition of marriage as the union of one man and one woman. None of the usual state interests in procreation and child-rearing that have been advanced in other cases were available to the state attorney general, since the state had already surrendered any such rationales through its comprehensive domestic partnership scheme. So the state lost. (As I've argued before, and as Eugene points out in his slippery slope post, the holding provides political ammunition to opponents of legal rights for gay families who will warn state legislatures against moving toward any recognition lest state courts require the state to slide all the way to full marriage.) The same will not be true in litigation in other states where public policy has not erased all substantive distinctions between gay and straight couples, and thus perhaps the influence of the California decision on other state courts will be very limited.

But I think this potential limitation on the impact of the California ruling has more bark than bite for two reasons.

First, the California court held that the fundamental right to marry includes the right of same-sex couples to marry, just as it concluded in 1948 that the right to marry includes the right of inter-racial couples to marry, not that there is a fundamental right to "inter-racial marriage." Op. at 51. The California court did not hold that there is a new and separate fundamental right to something called "same-sex marriage," a nuance some critics of the decision have missed. This holding is a first for a state high court in marriage litigation. Most of the courts so far have missed the distinction and have assumed that the claim at issue was for recognition of a new fundamental right to same-sex marriage and then, having under-theorized the issue, they've gone on to reject the "new" right. It's the same methodology the Supreme Court used in Bowers v. Hardwick, where it rejected a new fundamental right to "homosexual sodomy." The Supreme Court rejected that approach in Lawrence v. Texas by saying that the issue was whether the conduct was protected by the long-recognized fundamental right of adults to private intimacies. The California court's frank discussion of the level of generality at which fundamental rights are defined is the most sophisticated yet in a marriage case. See, for example, the discussion of Washington v. Glucksberg and other cases at pp. 70-72.

However one feels about this distinction between a narrow and broad characterization of the claimed right, the California court's conclusion about the inclusion of gay couples within the pre-existing fundamental right to marry does not itself depend on whether the state has previously created a status for them substantively approximating marriage. The decision depends instead on what the California court called the substantive interests in personal autonomy, dignity, happiness, and familial fulfillment protected by the right — interests that gay families fully share with heterosexual ones.

Nowhere in its discussion of the substantive importance of the right to marry does the California court rely on the creation of domestic partnerships. Gay couples, like straight couples, have these interests regardless of whether the state has acted to protect them in some way. Thus, says the court:

[O]ur reference to numerous statutes demonstrating California's current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment (ante, fns. 46, 47) does not suggest that an individual's entitlement to equal treatment under the law — regardless of his or her sexual orientation — is grounded upon the Legislature's recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity.

It would be surprising for a court to hold explicitly that the legislature expanded by statute the substantive scope of a fundamental constitutional right. The legal realist would observe that, whatever courts say they are doing, this is in fact what does happen. The interpreation of spacious provisions about "due process" and "equal protection" often rests on empirical learning, experience, and evolving understanding such that this broad constitutional language is applied to new contexts in ways that would have seemed strange at the time these provisions were enacted.

The California court concludes that the state's legislative domestic-partnership enactments have not created a new constitutional right but are a confirmation and official recognition of an underlying truth about the equal needs and capacities of gay couples and families. So even if California had not enacted the domestic partnership laws for same-sex couples, the California court would have concluded under its own logic that they were included within the fundamental right to marry. This holding should have some influence on courts in other states.

Second, the holding that excluding gay couples from marriage is sexual-orientation discrimination and that such discrimination cannot survive strict scrutiny also does not depend on whether the state previously enacted domestic partnership laws. If the substantive right of marriage, and the dignitary interest in having the relationship called "marriage" by the state, cannot be denied on the basis of sexual orientation it should not matter that the state has left gay families completely without legal protection or has seen fit to protect them in all substantive ways but withheld the title marriage. Indeed, if the state had refused to give gay couples any protection under state law, or had given them only very little protection, the affront to equal protection principles under the court's reasoning would be even greater. The equal protection holding, quite apart from the fundamental-right holding, has potential to influence sister state courts in future marriage litigation.

None of this means that courts in other states will follow the California decision. They are free to reject it. They can rely on the larger number of state high courts that have rejected claims for same-sex marriage. They can say that California is unusual in its legal development toward the recognition of gay families. They can distinguish their own precedents from the California precedents. As a practical matter, they may feel pressured to rule against same-sex marriage because they face elections. My prediction is that we will not see an avalanche of gay-marriage victories in states across the country. California was one of the last hopes of the gay-marriage litigants, who have lost in many states where the state judiciary was thought to be sympathetic. But, as an analytical matter, California's supreme court has set the bar higher than ever before.

There are many more facets of this long opinion that are worth consideration, including the California court's use of secondary authorities (which will thrill some of those authorities and dismay others), its analysis of the sex-discrimination argument for gay equality, its first-in-the-nation holding that sexual-orientation discrimination should be subjected to heightened scrutiny, its holding that the distinction in nomenclature between "marriage" and alternative statuses like "civil unions" or "domestic partnerships" is a constitutionally significant one, and its elaborate refutation of common policy arguments against gay marriage. There are fascinating and very complex political and legal questions raised by the proposed state constitutional amendment in California that would limit marriage to one man and one woman. Also, because California, unlike Massachusetts, has no residency requirement for marriage, there are legal issues that will be raised by gay couples living in other states who travel to California to get married. And of course there is the human side of this story, noted by Eugene, affecting the aspirations of thousands of gay families in the state of California. I hope to address some of these and other issues in future posts.