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.

Secondary sources in the California marriage decision:

Citations in judicial opinions are about the only way legal academics know that their scholarship is being considered by someone other than other legal academics and that it might even be having some real-world effect. The use of secondary sources in last week's California marriage decision will delight some of the authors and dismay others. A few examples:

Carlos Ball: Professor Ball -- soon to be at Rutgers-Newark -- is one of the most interesting and thoughtful defenders of gay equality among legal academics today. He is cited for the idea that the fundamental right to marry has a positive dimension; that is, the state must provide some formal legal recognition to family relationships. Op. at 65 n. 43. I have my doubts about this view, since rights are not generally thought to impose positive obligations on the state. I also don't think this conclusion was necessary to the court's holding. But Ball makes a good case for it in a 2004 Minnesota Law Review article and the California court agrees with him.

David Blankenhorn: Blankenhorn's very good 2007 book arguing against gay marriage, The Future of Marriage, is cited for the idea that marriage has historically been about procreation. Id. at 73. The court notes, however, that the constitutional right to marry has never been limited to couples who can procreate. Id. at 73-74.

Jesse Choper: The former Berkeley law dean is cited for the idea that courts should defend individual rights no matter the political reaction. Id. at 110. It is the only oblique reference I can find in the opinion to the possibility that California voters will repeal gay marriage at the ballot box in November.

Mary Ann Glendon: Professor Glendon of Harvard, a conservative Catholic who's now the US Ambassador to the Vatican, opposes gay marriage. But in reaching its conclusion that gay marriage is good for society, the court cites her for the proposition that legal obligations in marriage help relieve society of social-welfare burdens it would otherwise have. Id. at 58 n. 37.

John Rawls: Yes, Rawls! The court refutes an ill-considered argument by amicus curiae the American Center for Law & Justice, which opposes gay marriage, that Rawls believed reproduction is essential to family function. Id. at. 78-79 n. 51. Rawls had some nice things to say about gay people and didn't think any particular family form was critical. There are many philosophers one could cite in opposition to gay marriage, but the justice-as-fairness guru is among the least persuasive for that position.

Cass Sunstein: What's an opinion these days on almost any subject without a citation to one of my favorite professors from law school? The majority cites his Cardozo article on the right to marry, if only to distinguish his view about the nature and scope of the federal constitutional right from its view about the state constitutional right. Id. at 63 n. 42.

Lynn Wardle: Professor Wardle of BYU Law School has been among the most prolific scholars in the country opposed to gay marriage. Moreover, his writing has been influential and is frequently cited by courts to justify, among other things, Florida's prohibition on adoption by homosexuals. Wardle's work is cited twice in the majority opinion. Along with David Blankenhorn and Maggie Gallagher (the court misspells her name as "Gallaher"), Wardle is cited as arguing that same-sex marriage severs the link between procreation and child-rearing and sends the message that it is not important to have biological mothers and fathers raising their children. Id. at 77. The courts says this argument "lacks merit" because allowing gay couples to marry does not diminish the incentive that straight couples have to marry and does not reduce their legal responsibilities to their own children. Further, same-sex marriage extends to the children being raised by gay couples the legally protected familial structure it provides to children raised by opposite-sex married couples. Id. at 78. To Wardle's probable dismay, the court relies on his work on the international status of marriage for the idea that many nations provide special protections for families and marriage -- a protection the court (but not Wardle) thinks should extend to gay families. Id. at 63 n. 41.

Congratulations (and some condolences) to these authors!

Sexual orientation and heightened scrutiny in the California marriage decision:

While the politics are complicated and uncertain five months out, a thrilling but narrow win for gay marriage in the California Supreme Court last week could become a narrow and heartbreaking loss at the polls in November. But the court's equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.

For the first time in the nation's history, an appeals court of last resort has held that discrimination on the basis of sexual orientation, like discrimination based on race, should be subjected to strict judicial scrutiny under equal protection principles. Under this scrutiny, the discrimination is almost always unconstitutional, requiring the government to show that its classification is necessarily related (or narrowly tailored) to a compelling interest. While this part of the California Supreme Court holding may have little practical effect in a state like California, where it seems almost all public and much private discrimination has already been eliminated by the state legislature, the court's reasoning may influence other courts at the state and federal levels that have been very reluctant to go down this road.

For decades, legal scholars have been urging courts to treat sexual-orientation discrimination as suspect under equal-protection principles. In fact, it's difficult to find law review articles that offer extended analysis of why such discrimination should not be subject to some heightened scrutiny. (Whether some anti-gay discrimination could be subject to strict or intermediate scrutiny because it impinges on a fundamental right guaranteed by the due process clause, as the Ninth Circuit held yesterday in a case involving "Don't Ask, Don't Tell," is a different doctrinal question.)

Despite the academic consensus, and aside from some notable exceptions, like a vacated Ninth Circuit opinion more than a decade ago and a dissent from denial of certiorari by Justice Brennan in a case from the mid-1980s, federal and state judges have uniformly rejected heightened scrutiny for sexual orientation discrimination under equal protection principles. They have offered various reasons for this, discussed more below, but the unarticulated fear may be that strict scrutiny would call into question lots of state and federal laws that discriminate against gays. Courts overturning anti-gay discrimination have found other ways to do so by, for example, saying that sodomy laws violate substantive due process (e.g., Lawrence v. Texas) or by holding that some forms of anti-gay discrimination are simply irrational because based on "animus" (e.g., Romer v. Evans). Even courts finding constitutional protection for gay marriage or civil unions have avoided heightened scrutiny (e.g., the high courts in New Jersey, Vermont, and Massachusetts)

The California court's discussion of heightened scrutiny is at pp. 93-100 of the opinion. It will be required reading in courses on sexual-orientation law.

I. Is the limitation of marriage to one man and one woman "sexual orientation" discrimination?

The first step in the argument is to show that limiting marriage to one man and one woman is a form of sexual-orientation discrimination. Some opponents have argued that this is not sexual-orientation discrimination because such laws do not forbid "homosexuals" from marrying. Homosexuals can marry persons of the opposite sex. At most, they say, prohibiting same-sex marriages has a disparate impact on gays and thus does not constitute objectionable discrimination unless the purpose of the law is to discriminate against gays.

But this argument elevates form over substance, understating the special way in which foreclosing marriage to another person based on the sex of that other person (whether same- or opposite-sex) strikes at an individual's sexual orientation. It's akin to saying that a ban on the wearing of yarmulkes isn't anti-Jewish discrimination because Jews and non-Jews alike are forbidden to wear them.

The argument probably has some traction among a few gay-rights opponents who doubt there really is such a thing as homosexual orientation and thus imagine that requiring gay persons to marry members of the opposite sex is no big imposition on them. But I think even most opponents of gay marriage would recognize that there is sexual orientation discrimination, albeit justified discrimination, in forbidding a gay person to marry another person of the same sex. The court quickly dispensed with the argument: "In our view, it is sophistic to suggest that this conclusion [that limiting marriage to one man and one woman is sexual orientation discrimination] is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person's sexual orientation." Op. at 94. Unlike race, sexual orientation is closely linked to a behavior, in this case the intimate relationships that a person forms with others, just as the behavior of yarmulke-wearing is closely linked to Jewish identity for many observant Jews.

This is not to say that marriage as it exists in most places today is just another form of bigotry, like separate water fountains for blacks and whites in the pre-civil-rights era. That would be a reductionist and just dumb way to describe marriage. Marriage has many noble purposes and effects, quite aside from the way in which it excludes one or another group of people. An institution like marriage or the military can be important and indeed essential to a society and at the same time operate in discrete ways that invidiously discriminate. The California Supreme Court did not say that marriage as a whole is bigotry, as some critics of the decision have charged; it said that one limitation in the state's marriage law could not be justified.

II. Should sexual-orientation discrimination be subjected to heightened judicial scrutiny?

The more important and far more controversial step in the court's equal-protection holding is the second one, applying strict scrutiny to sexual-orientation discrimination. As a matter of federal constitutional law, which often influences state constitutional law in this area, the U.S. Supreme Court has never explicitly required any particular test for suspect-class status. It has only suggested some relevant considerations in a few scattered opinions.

In last week's marriage case, the California Supreme Court reviewed four factors most often considered in deciding that discrimination aimed at a class of persons is constitutionally suspect and thus places a heavy burden of persuasion on the government to justify it. They are:

(1) Whether the characteristic has subjected the group to a history of social and legal discrimination;

(2) Whether the characteristic of the group is generally related to the person's ability to perform or contribute to society;

(3) Whether the characteristic of the group is immutable; and

(4) Whether the group is so politically weak that it needs the protection of courts from overweening legislative majorities.

The California Attorney General did not contest the first three factors.

The first two factors are uncontroversially met; indeed, I can think of no court that has rejected suspect-class designation for gays on the ground that these conditions were absent. The U.S. Supreme Court once used the second factor -- ability to perform -- as a reason to deny suspect-class status to the mentally retarded. No such performance limitation is present for gays. And there is no doubt that there has been long history of social stigma and legal discrimination against homosexuals.

The third factor has long been a sticking point, with courts usually concluding that there is insufficient scientific proof that homosexual orientation is immutable. The California Supreme Court sidestepped the scientific dispute about sexual orientation by noting that strict immutability is not invariably required for suspect-class status. First, discrimination based on religion is subject to strict scrutiny under equal protection principles, even though people freely change religious views and affiliations. Similarly, alienage is often treated under federal constitutional law as a suspect classification even though a foreigner can become a citizen. Id. at 97-98. Second, immutability does not mean absolute immutability; it includes any characteristic that is "an integral aspect of one's identity." Sexual orientation is "either unchangeable or changeable only at unacceptable personal costs.'" Id. at 98. Asking a gay person to change his sexual orientation to avoid discrimination would be like asking a heterosexual to become a homosexual to avoid that cost. Perhaps it could be done, perhaps not, but even the effort would come at a very high personal cost.

The fourth factor -- whether the group is so politically powerless that it needs special judicial protection -- was the only one contested by the California AG, who pointed to the many ways in which the state legislature has protected gays from public and private discrimination. The state's broad domestic partnership law and the legislature's passage of a gay-marriage law themselves are examples of gays' ability to score successes and gain allies in the state's political process. Leaving aside the observation that gays are still subject to much homophobia even in otherwise friendly states like California, despite the existence of some anti-discrimination protection, why do they need the special protection of courts?

The court answered this very good question by saying that suspect-class status obviously can't be limited to groups that currently lack political power. Otherwise, there would be no heightened scrutiny for classifications based on race, sex, or religion. These classifications are no longer acceptable in the political process and much has been done to advance the interests of blacks, women, and religious minorities. According to the California Supreme Court, the only things that matter are whether the group has historically been subject to invidious discrimination and whether society now recognizes the group's trait is unrelated to merit.

Purely as a way to read the state of current equal-protection doctrine, the court's conclusion seems right. The U.S. Supreme Court is not about to end heightened scrutiny for race- and sex-based classifications just because blacks and women are no longer subject to state-sponsored discrimination.

Justice Baxter's dissent agrees that special judicial scrutiny for race and sex classifications should not be eliminated. So why deny gays alone special judicial protection on the grounds that they've made considerable political progress? Justice Baxter answers this by arguing that it's one thing to extend such protection when a group actually needs it but then with draw it when they longer do, but quite another to extend such protection as a matter of first impression at a time when they do not need it. Baxter dissent at pp. 24-25.

But there's a problem with Baxter's response. Is he saying that he would have voted for heightened scrutiny of sexual orientation discrimination in 1970, when gays really, really needed it but when it would have been unthinkable to give them special judicial protection? Is he, at the same time, saying that if a claim for heightened scrutiny for race were to come before the court as a matter of first impression now he would reject it because racism is currently disfavored in the legislature? Both of these conclusions seem very unlikely, but they are an implication of his logic. So the California Supreme Court's conclusion that current widespread discrimination against a group is not invariably required for heightened scrutiny seems justified under equal-protection doctrine.

But what this conclusion effectively means is that the fourth factor has been collapsed into the first and second factors. If a group can fend for itself tolerably well in the political process because society now sees the trait as irrelevant to merit, why not wait as the political process continues to purge itself of any lingering discrimination? That is what California was doing on the question of marriage itself, with the legislature having twice passed gay-marriage bills. The next governor might well have signed such a law, which (as we now know from the court's decision) would then have had to go to the voters for approval.

The truth is that the "political powerlessness" prong of equal-protection doctrine is more decorative than substantive. It has never had much independent force. As William Eskridge has argued, heightened judicial scrutiny of a classification usually comes only after the suspect class has organized itself as a political and judicial force and after its equality claims have gained a measure of social acceptance. That was true of the civil rights movements for blacks and women; judicial victories often followed political and social successes for the struggles of these groups. After these successes, judges stepped in tentatively, at first, to hasten further progress and finally to eliminate the remaining vestiges of discrimination.

So courts have usually been far more cautious about protecting minority rights than those who continually complain about judicial "activism" and "tyranny" suppose. There's a good reason we won't see heightened protection for gays in the state court systems in places like Mississippi or Texas, where there's truly a practical current need for it. Courts, and especially elected courts, wait until it's safe to be brave.

Something like that is what happened in California, and may happen elsewhere in the nation in the coming decades. Long before the California Supreme Court issued its bold opinion last Thursday, gay Californians organized themselves into a political movement, got openly gay officials elected, rid the state of sodomy laws, passed civil-rights protections, worked tirelessly but incrementally for recognition of their relationships, and pressed for judicial solicitude. The judicial declaration they got last week that discrimination against them is no longer tolerable was not the beginning of something new so much as it was the recognition of something already achieved.