California Supreme Court invalidates gay marriage ban

It’s a good day for civil rights, at least in California. Today that state’s high court ruled by a vote of 4-3 that California statutes limiting marriage to opposite-sex couples violates the equal protection provision of the California Constitution. In re Marriage Cases (pdf, 172 pages). The majority consists of Chief Justice Ronald George (author of the majority opinion) and Justices Joyce Kennard, Kathryn Werdegar, and Carlos Moreno.

The court ruled as it did despite the fact that California has a comprehensive statutory domestic partnership scheme under which same-sex couples can obtain pretty much all the legal benefits that marriage confers upon opposite-sex couples. Thus:

[T]he legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”

The way the court phrased the issue strongly suggests a negative answer, but the actual answer was a resounding yes. Happily, the Court’s approach goes far beyond the “separate but equal” holding of the New Jersey Supreme Court a few years back.

Based on my thus far extremely cursory reading, it appears that the Court held: (1) marriage is a fundamental right for purposes of California equal protection analysis; (2) the right can’t limited by narrowly defining “marriage” to include just traditional marriage; (3) the “strict scrutiny” standard of review applies to the statute at issue because the disparate treatment the statute provides infringes on same-sex couples’ “fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple”; and (4) the statute fails strict scrutiny review because the asserted justification for the statutory classification — namely “the interest in retaining the traditional and well-established definition of marriage” — is not the sort of compelling state interest needed to preserve the statute from constitutional attack.

As to remedy, the court held that the statutory language “limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.”

I’ll post more once I’ve had a chance to digest the 172 pages of majority, concurring and dissenting opinions. A couple of quick, half-educated observations:

– Some sections of the majority opinion contain citations to a lot of federal court cases. That makes me wonder whether the California Supreme Court has fully insulated itself from SCOTUS review.

– The decision is based on the state constitution, so the obvious next step for gay rights opponents is a state constitutional amendment.

Adequate and Independent State Grounds:

I’m no longer especially concerned about the prospect of the U.S. Supreme Court hearing this case based on a finding that the California Supreme Court’s decision isn’t based on a genuinely “independent” state law ground. Yes, the majority opinion is laced throughout with citations to federal cases, but that shouldn’t make much of a difference here. The decision is based in part on the California Supreme Court’s holding that legislative classifications based on sexual orientation are “suspect” for purposes of the state constitution’s Equal Protection Clause. That holding is unprecedented, as far as I’m aware, and anyone who thinks such a holding has any support in federal equal protection case law simply hasn’t been paying attention for the last forty years or so.

Activist Judges:

The terms “judicial activism” and “activist judges” are mantras within the strange little world of the right wing scream apparatus. The terms are so overused that they’re pretty much bereft of any genuine meaning. “Activist judges” translates to “I’m a socially conservative knob and I really, really dislike that decision” nowadays.

But the terms do have their effect, even on judges. The majority opinion pretty much screams “we are not activists” from very early on. Such defensive legal writing is bound to have some effect on the content of court opinions.

Justice Corrigan begins her dissent, all in all a fine piece of work, by noting her personal preference for the result reached by the majority. That too says, “I am not an activist.” Justice Baxter’s dissent backhandedly calls the majority decision activist when he notes that “in ten, fifteen, or twenty years, an activist court might . . . rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified[.]” (Baxter, J., concurring in part and dissenting in part, at 17.)

There was plenty of activism to go around here. An activist General Assembly twice voted to end the gay marriage ban legislatively. An activist governor twice nixed those efforts, thereby dumping the issue into the judiciary’s lap. Yesterday the Governator announced that he will abide by the decision and reiterated his position that he won’t support a constitutional amendment overturning the decision. At some level, then, Arnold understands the distinction between judges acting and judicial activism.

Effects of California’s Domestic Partner Legislation:

The California Supreme Court had a much more difficult job than the courts of other states. The majority describes the history of California’s domestic partner legislation on pages 36-47 of its opinion. From 1999 to 2007 the state legislature passed a series of domestic partner laws under which same sex couples have “the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples.”

Contrast that with the laws of most other states, where gay couples are second class citizens by virtue of the facts that (1) they’re excluded from marriage and (2) only marriage can provide access to the goodie bag of couple-related legal benefits. Take, for instance, the Iowa gay marriage decision Varnum v. Brien, previously discussed here. The Iowa trial court judge was able to strike a blow for civil rights based largely on the fact that state law excludes gay couples from the legal benefits available to straight couples through marriage.

Here, though, California’s comprehensive domestic partner legislation pretty much precluded the plaintiffs from arguing availability of benefits. The Supreme Court determined that the domestic partner laws were directly relevant to determining the constitutionality of the statutes limiting marriage to opposite-sex couples. The issue, in essence, was whether maintaining one system (marriage) for straight couples and a “separate but equal” system for gay couples (domestic partnership) offended the state constitution.

Interestingly enough, the majority disclaimed the idea that the existence of the domestic partner laws made the plaintiffs’ job more difficult:

If a comprehensive domestic partnership law had not been enacted in California, and if plaintiffs had brought a constitutional challenge to the California marriage statutes and our court had concluded that those statutes were unconstitutional because they did not afford same-sex couples rights and benefits equal to those available to opposite-sex couples under the marriage statutes, we might well have further concluded — as other state courts have determined in similar situations — that the appropriate disposition would be to direct the Legislature to provide equal treatment to same-sex couples, leaving to the Legislature, in the first instance, the decision whether to provide such treatment by a revision of the marriage statutes or by the enactment of a comprehensive domestic partnership or civil union law.

(Maj. Op. at 47, n.27.) Because of the domestic partner laws, the court didn’t have that option; it had to address the merits of the plaintiffs’ constitutional challenge. Id. (because of “domestic partnership . . . grant[ing] to same-sex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of the burden of successfully prosecuting a constitutional challenge to obtain those substantive rights and benefits.”).

I find that rationale more than a little unconvincing. Prosecuting a constitutional challenge based solely on dignitary harms is invariably more difficult than prosecuting a constitutional challenge based on denial of substantive rights and benefits to a specific class of people. Of course, that only makes the plaintiffs’ win in this case all the more impressive.

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  • qazi63  On May 15, 2008 at 12:25 pm

    Genesis 19:5-8
    5And they called unto Lot, and said unto him, Where are the men which came in to thee this night? bring them out unto us, that we may know them.
    6And Lot went out at the door unto them, and shut the door after him,
    7And said, I pray you, brethren, do not so wickedly.
    8Behold now, I have two daughters which have not known man; let me, I pray you, bring them out unto you, and do ye to them as is good in your eyes: only unto these men do nothing; for therefore came they under the shadow of my roof.

    Exodus 22:19

    19Whosoever lieth with a beast shall surely be put to death.

    Leviticus 18:22

    22Thou shalt not lie with mankind, as with womankind: it is abomination.

    Leviticus 18:23

    23Neither shalt thou lie with any beast to defile thyself therewith: neither shall any woman stand before a beast to lie down thereto: it is confusion.

    Leviticus 20:13

    13If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.

    Leviticus 20:15

    15And if a man lie with a beast, he shall surely be put to death: and ye shall slay the beast.

    Leviticus 20:16

    16And if a woman approach unto any beast, and lie down thereto, thou shalt kill the woman, and the beast: they shall surely be put to death; their blood shall be upon them.

    Deuteronomy 1
    1These be the words which Moses spake unto all Israel on this side Jordan in the wilderness, in the plain over against the Red sea, between Paran, and Tophel, and Laban, and Hazeroth, and Dizahab.
    2(There are eleven days’ journey from Horeb by the way of mount Seir unto Kadeshbarnea.)
    3And it came to pass in the fortieth year, in the eleventh month, on the first day of the month, that Moses spake unto the children of Israel, according unto all that the LORD had given him in commandment unto them;
    4After he had slain Sihon the king of the Amorites, which dwelt in Heshbon, and Og the king of Bashan, which dwelt at Astaroth in Edrei:
    5On this side Jordan, in the land of Moab, began Moses to declare this law, saying,
    6The LORD our God spake unto us in Horeb, saying, Ye have dwelt long enough in this mount:
    7Turn you, and take your journey, and go to the mount of the Amorites, and unto all the places nigh thereunto, in the plain, in the hills, and in the vale, and in the south, and by the sea side, to the land of the Canaanites, and unto Lebanon, unto the great river, the river Euphrates.
    8Behold, I have set the land before you: go in and possess the land which the LORD sware unto your fathers, Abraham, Isaac, and Jacob, to give unto them and to their seed after them.
    9And I spake unto you at that time, saying, I am not able to bear you myself alone:
    10The LORD your God hath multiplied you, and, behold, ye are this day as the stars of heaven for multitude.
    11(The LORD God of your fathers make you a thousand times so many more as ye are, and bless you, as he hath promised you!)
    12How can I myself alone bear your cumbrance, and your burden, and your strife?
    13Take you wise men, and understanding, and known among your tribes, and I will make them rulers over you.
    14And ye answered me, and said, The thing which thou hast spoken is good for us to do.
    15So I took the chief of your tribes, wise men, and known, and made them heads over you, captains over thousands, and captains over hundreds, and captains over fifties, and captains over tens, and officers among your tribes.
    16And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him.
    17Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God’s: and the cause that is too hard for you, bring it unto me, and I will hear it.
    18And I commanded you at that time all the things which ye should do.
    19And when we departed from Horeb, we went through all that great and terrible wilderness, which ye saw by the way of the mountain of the Amorites, as the LORD our God commanded us; and we came to Kadeshbarnea.
    20And I said unto you, Ye are come unto the mountain of the Amorites, which the LORD our God doth give unto us.
    21Behold, the LORD thy God hath set the land before thee: go up and possess it, as the LORD God of thy fathers hath said unto thee; fear not, neither be discouraged.
    22And ye came near unto me every one of you, and said, We will send men before us, and they shall search us out the land, and bring us word again by what way we must go up, and into what cities we shall come.
    23And the saying pleased me well: and I took twelve men of you, one of a tribe:
    24And they turned and went up into the mountain, and came unto the valley of Eshcol, and searched it out.
    25And they took of the fruit of the land in their hands, and brought it down unto us, and brought us word again, and said, It is a good land which the LORD our God doth give us.
    26Notwithstanding ye would not go up, but rebelled against the commandment of the LORD your God:
    27And ye murmured in your tents, and said, Because the LORD hated us, he hath brought us forth out of the land of Egypt, to deliver us into the hand of the Amorites, to destroy us.
    28Whither shall we go up? our brethren have discouraged our heart, saying, The people is greater and taller than we; the cities are great and walled up to heaven; and moreover we have seen the sons of the Anakims there.
    29Then I said unto you, Dread not, neither be afraid of them.
    30The LORD your God which goeth before you, he shall fight for you, according to all that he did for you in Egypt before your eyes;
    31And in the wilderness, where thou hast seen how that the LORD thy God bare thee, as a man doth bear his son, in all the way that ye went, until ye came into this place.
    32Yet in this thing ye did not believe the LORD your God,
    33Who went in the way before you, to search you out a place to pitch your tents in, in fire by night, to shew you by what way ye should go, and in a cloud by day.
    34And the LORD heard the voice of your words, and was wroth, and sware, saying,
    35Surely there shall not one of these men of this evil generation see that good land, which I sware to give unto your fathers.
    36Save Caleb the son of Jephunneh; he shall see it, and to him will I give the land that he hath trodden upon, and to his children, because he hath wholly followed the LORD.
    37Also the LORD was angry with me for your sakes, saying, Thou also shalt not go in thither.
    38But Joshua the son of Nun, which standeth before thee, he shall go in thither: encourage him: for he shall cause Israel to inherit it.
    39Moreover your little ones, which ye said should be a prey, and your children, which in that day had no knowledge between good and evil, they shall go in thither, and unto them will I give it, and they shall possess it.
    40But as for you, turn you, and take your journey into the wilderness by the way of the Red sea.
    41Then ye answered and said unto me, We have sinned against the LORD, we will go up and fight, according to all that the LORD our God commanded us. And when ye had girded on every man his weapons of war, ye were ready to go up into the hill.
    42And the LORD said unto me, Say unto them. Go not up, neither fight; for I am not among you; lest ye be smitten before your enemies.
    43So I spake unto you; and ye would not hear, but rebelled against the commandment of the LORD, and went presumptuously up into the hill.
    44And the Amorites, which dwelt in that mountain, came out against you, and chased you, as bees do, and destroyed you in Seir, even unto Hormah.
    45And ye returned and wept before the LORD; but the LORD would not hearken to your voice, nor give ear unto you.
    46So ye abode in Kadesh many days, according unto the days that ye abode there.

    1. 1 Kings 14:24
    And there were also sodomites in the land: and they did according to all the abominations of the nations which the LORD cast out before the children of Israel.
    1 Kings 14:23-25 (in Context) 1 Kings 14 (Whole Chapter)

    2. 1 Kings 15:12
    And he took away the sodomites out of the land, and removed all the idols that his fathers had made.
    1 Kings 15:11-13 (in Context) 1 Kings 15 (Whole Chapter)

    3. 1 Kings 22:46
    And the remnant of the sodomites, which remained in the days of his father Asa, he took out of the land.
    1 Kings 22:45-47 (in Context) 1 Kings 22 (Whole Chapter)

    4. 2 Kings 23:7
    And he brake down the houses of the sodomites, that were by the house of the LORD, where the women wove hangings for the grove.
    2 Kings 23:6-8 (in Context) 2 Kings 23 (Whole Chapter)

    More from King James Version
    2. BLINDNESS » Miraculously inflicted upon the Sodomites (Genesis 19:11)
    3. JUDGMENTS » Sodomites (Genesis 19:23-25)
    5. ADULTERY » INSTANCES OF » Sodomites (Genesis 19:5-8)
    6. DEATH » AS A JUDGMENT » Sodomites (Genesis 19:12,13,24,25)
    7. LASCIVIOUSNESS » INSTANCES OF » Sodomites (Genesis 19:5)
    8. OBDURACY (HARDNESS) » INSTANCES OF » Sodomites (Genesis 19:9,14)
    9. SIN » INSTANCES OF » The Sodomites (Genesis 18:20)
    10. WOMEN » INSTANCES OF » The sodomites of the southern kingdom (Judah) (2 Kings 23:7)

  • genghishitler  On May 15, 2008 at 12:47 pm


  • Blake  On May 15, 2008 at 2:02 pm

    Yes, I (and others) know what the Bible says about homosexuality, but we don’t care. Aside from being wrong, the Bible is not our basis of law. Our Constitution and common-law tradition are, and neither of them relies on the Bible (no matter what some people may claim).

    Also, somebody came along and replaced the Old Testament with a new covenant. All a Christian really ought to care about homosexuality is what Jesus has to say about it, perhaps also bearing in mind that some things are to be rendered unto Caesar, not God.

  • Zach  On May 15, 2008 at 5:04 pm

    Since we’re taking a literal approach to what the Bible says about homosexuality, I’d like to get qazi63’s input on these passages from the Bible:

    1. When I burn a bull on the altar as a sacrifice, I know it creates a pleasing odor for the Lord — Lev.1:9. The problem is my neighbors. They claim the odor is not pleasing to them. Should I smite them?

    2. I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7. In this day and age, what do you think would be a fair price for her?

    3. I know that I am allowed no contact with a woman while she is in her period of menstrual uncleanliness — Lev.15: 19-24. The problem is how do I tell? I have tried asking, but most women take offense.

    4. Lev. 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighboring nations. A friend of mine claims that this applies to Mexicans, but not Canadians. Can you clarify? Why can’t I own Canadians?

    5. I have a neighbor who insists on working on the Sabbath. Exodus 35:2. The passage clearly states he should be put to death. Am I morally obligated to kill him myself?

    6. A friend of mine feels that even though eating shellfish is an abomination – Lev. 11:10, it is a lesser abomination than homosexuality. I don’t agree. Can you settle this? Are there “degrees” of abomination?

    7. Lev. 21:20 states that I may not approach the altar of God if I have a defect in my sight. I have to admit that I wear reading glasses. Does my vision have to be 20/20, or is there some wiggle room here?

    8. Most of my male friends get their hair trimmed, including the hair around their temples, even though this is expressly forbidden by Lev.19:27. How should they die?

    9. I know from Lev. 11:6-8 that touching the skin of a dead pig makes me unclean, but may I still play football if I wear gloves?

    10. My uncle has a farm. He violates Lev. 19:19 by planting two different crops in the same field, as does his wife by wearing garments made of two different kinds of thread (cotton/polyester blend). He also tends to curse and blaspheme a lot. Is it really necessary that we go to all the trouble of getting the whole town together to stone them? — Lev.24:10-16. Couldn’t we just burn them to death at a private family affair like we do with people who sleep with their in-laws? (Lev. 20:14)

    Now I can’t take credit for the passages I’ve quoted or the followup comments; all credit goes to James M. Kauffman, Ed.D. Professor Emeritus Dept. of Curriculum, Instruction, and Special Education University of Virginia.

  • Blake  On May 15, 2008 at 7:55 pm

    genghis, I’m definitely interested in reading whatever follow-up you might have to share. I haven’t read any of the decision yet, just synopses, but I’ve started reading the dissents and I’m very curious how reasonable their legal reasoning is.

  • ChuckF  On May 17, 2008 at 2:22 pm

    Excellent post as usual genghis. But I’m more interested in this “Bible” e-mail newsletter about sodomy that qazi63 referenced. Do you know where can I sign up? And does it come in a weekly digest?

  • genghishitler  On May 19, 2008 at 6:30 am

    Fine question, Chuck. Here’s hoping qazi63 returns and lets us in on the details. Who among us can resist the lure of having sodomy delivered to our inboxes on a daily basis?


  • […] Caplis: Liar, Ignoramus or Both? Colorado radio has no shortage of half-sentient, bird brained, right wing screaming heads. Take Dan Caplis of KHOW-AM, for instance. Colorado Media Matters reports here on Caplis’ tirade against the California Supreme Court’s recent gay marriage ruling. […]

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