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.

The Slippery Slope to Same-Sex Marriage:

The California Supreme Court decision striking down California's opposite-sex-only-marriage rule helps illustrate, I think, what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:

  1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."

  2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."

  3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."

Yet consider how the California Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage:

There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.

[Footnotes to above: See, for example, Civil Code section 51 (barring sexual orientation discrimination in the provision of services by any business establishment); Government Code sections 12920 (barring sexual orientation discrimination in employment), 12955 (barring sexual orientation discrimination in housing), 11135, subdivision (a) (barring sexual orientation discrimination in any program operated by, or that receives any financial assistance from, the state); Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 466-475 (Gay Law Students) (Cal. Const. prohibits sexual orientation discrimination by public utility). See, for example, sections 297 et seq., 9000, subdivisions (b), (g); Welfare & Institutions Code section 16013, subdivision (a); Sharon S. v. Superior Court (2003) 31 Cal.4th 417; Elisa B. v. Superior Court, supra, 37 Cal.4th 108....]

Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts) and same-sex domestic partnership benefits (Vermont).

Now the California Supreme Court majority does say that "our reference to numerous statutes demonstrating California’s current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment 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. Similarly, the numerous recent legislative enactments prohibiting discrimination on the basis of sexual orientation were not required in order to confer upon gay individuals a legal status equal to that enjoyed by heterosexuals; these measures simply provide explicit official recognition of, and affirmative support for, that equal legal status."

Yet the majority's citing those past legislative decisions — and going on to say that "Indeed, the change in this state’s past treatment of gay individuals and homosexual conduct is reflected in scores of legislative, administrative, and judicial actions that have occurred over the past 30 or more years. (See, e.g., Stats. 1975, ch. 71, §§ 7, 10, pp. 133, 134 [revising statutes criminalizing consensual sodomy and oral copulation]; Governor’s Exec. Order No. B-54-79 (Apr. 4, 1979) [barring sexual-orientation discrimination against state employees]; Morrison v. State Board of Education (1969) 1 Cal.3d 214 [homosexual conduct does not in itself necessarily constitute immoral conduct or demonstrate unfitness to teach].)" — means that the Justices in the majority must see legislative decisions as relevant. Maybe at least one Justice of the 4-to-3 majority was indeed swayed by the body of legislative pro-gay-rights judgment; or even if the argument was makeweight, the majority must think that some of the readers would be swayed by these legislative judgments. And these legislative judgments are seen as relevant even in an area (same-sex marriage) different from that in which the initial legislative judgments took place.

Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative. (The decriminalization of same-sex sexual conduct, which the California Supreme Court majority cited as evidence of a "change in this state’s past treatment of gay individuals and homosexual conduct," is likely the best example.)

But it seems to me that decisions such as the California, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), slippery slope risks have to be taken seriously.

Congratulations to California Same-Sex Married Couples:

In all this talk of constitutional law, it's easy to miss a human dimension: There are lots of same-sex couples in California who are already married under foreign law, who are already married in their own consciences and religious traditions, and who have long wanted to have their marriages recognized in the state in which they live.

Whatever one might think of the social or legal consequences of this sort of decision, it pretty clearly makes them happy, and happy for the right reason -- the common human desire to have them, their families, their love, and their mutual commitment recognized. So congratulations to all these couples, those whom I know well personally and the many more whom I don't.

"Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"

Rick Hasen (Election Law Blog) notes that "it seems very likely an initiative overturning the decision through a constitutional amendment will qualify and appear on the November ballot" (see here) and opines:

This helps John McCain because those conservative voters may not have come out in great numbers for him, but they will come out now to vote for this amendment, and they are more likely to vote for McCain than for the Democrat once they are already voting. That's not to say that California will go red, but it is to say that the Democratic nominee will have to devote more resources to this very expensive to campaign in state.

The California Legislature's Enactment of Same-Sex Marriage:

Some defenders of the California Supreme Court's same-sex marriage decision have argued that it's actually consistent with the democratic process, because the California legislature had twice enacted same-sex marriage, and the Governor vetoed the bills on the grounds that the California Supreme Court should decide the matter. I heard this from another panelist on a KQED-FM radio show I was just on; you can also see something similar at Lawyers, Guns and Money, and elsewhere.

I think it's a mistake to ascribe much significance to these vetoed bills. Under California law, the California Legislature has no authority to by itself reverse -- even with the Governor's approval -- an initiative statute, such as the California ban on same-sex marriage (enacted in 2000); reversing such an initiative statute through the legislative process requires a subsequent popular vote. The legislature may at most place the amendment on the ballot.

Now if the California Supreme Court is right that the initiative statute violates the California Constitution, then only a state constitutional amendment (which will likely be on the November ballot) can change that. But there's no doubt that it is the Court that made this decision, overturning the 61.4%-38.6% 2000 vote on the matter. It is that 2000 vote that's the only authoritative non-judicial statement on the matter. The Legislature had no power to itself change this statement, even had the Governor cooperated.

Incidentally, my sense is that this explains the Governor's veto statement that he wanted to see the Court's views on the matter: If the Court had concluded that the 2000 initiative statute was constitutionally permissible, then the Legislature and the Governor would have had no power to simply enact same-sex marriage; they would have had to do so through a statute that called for a popular vote on the subject.

The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:

When the U.S. Supreme Court reads the federal Constitution as barring certain kinds of laws -- especially state laws -- people often raise three related objections:

  1. The Justices are unelected, and not accountable to the people.

  2. The Justices' decisions are very hard to change for the people to change (since a constitutional amendment requires a two-thirds vote in each House of Congress, or a hard-to-call convention, plus majorities in three quarters of the state legislatures).

  3. The decision of nine judges in Washington, D.C. is interfering with contrary views of the people throughout the country.

Of course, if one thinks that the Constitution does indeed command a particular result, then one probably wouldn't raise these objections, largely because the Constitution was indeed enacted by the people (though usually a very different group of people than is now alive). But if one thinks the Justices read the Constitution wrong, these three objections exacerbate the error. And when a constitutional provision is very vague, these objections might be (to many) a reason to leave decisions in the hands of the democratically elected branches rather than in the hands of the Justices.

It's not clear, though, that the same objections play out quite the same way when we have a state Supreme Court interpreting a state constitution. In many states, Supreme Court Justices are indeed elected; in other states, they are at least accountable to the voters in retention elections. In most states, the state constitution is quite easy to change, generally requiring only placing a constitutional amendment on the ballot (which may be expensive if signatures need to be gathered, but which can often be done with no such expense by the people's representatives in the legislature) followed by a majority vote of the electorate. And the decision is at least made by Justices from one's own state, rather than by people in far-off Washington, D.C.

Consider, for instance, the California Supreme Court decision in the same-sex marriage case. California Supreme Court Justices are accountable to the people in retention elections, a weak form of accountability but still some accountability. The California Supreme Court Justices are at least Californians making decisions for other Californians. And in November, the voters will have the final word on the matter, with a 50%+1 vote being all that's required to reverse the court decision -- no need for the famously cumbersome Article V federal constitutional amendment process.

Naturally, if one thinks the California Supreme Court interpreted the state constitutional provisions incorrectly, the fact that their error can be easily corrected doesn't mean that it's not an error. But it might suggest that residents of California -- and especially of states where the constitution is easier to change and the Justices are elected in competitive races -- should be less concerned about Justices' ability to place their own interpretations on vague or ambiguous constitutional language.