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.