California Supreme Court Says Same-Sex Couples Can Marry

The California Supreme Court ruled in In re Marriage Cases, 2008 Westlaw 2051892 (May 15, 2008) that same-sex couples are entitled to marry in that state, and that same-sex couples married elsewhere are entitled to have their marriages recognized as valid in California. Furthermore, the court held that sexual orientation is a "suspect classification" under the California constitution, which means that any state statute or policy that discriminates based on sexual orientation is subject to the highest level of judicial scrutiny.

The 4-3 ruling, embodied in a 121-page decision by Chief Justice Ronald M. George, supplemented by Justice Joyce L. Kennard’s concurring opinion, drew two lengthy dissenting opinions, one by Justice Marvin R. Baxter, which was joined by Justice Ming W. Chin, and the other by Justice Carol A. Corrigan. Both of the dissenting opinions argued that the question of marriage was for the legislature or the people to decide through referendum, but not for the court.

While the ruling on marriage was in itself momentous, the ruling on "suspect classification" was potentially even more significant, as it casts into serious question any state law or policy that discriminates on the basis of sexual orientation.

The court ruled in a proceeding that consolidated six separate law suits, originally sparked by San Francisco Mayor Gavin Newsom’s decision in 2004 to issue marriage licenses to same sex couples. About 4,000 couples obtained licenses and married before the state secured a court order to stop. Later that year the state Supreme Court ruled that Newsom had acted beyond his authority and the marriages were void. However, at that time the court said that its decision had nothing to do with the underlying question, which it would address in an appropriate case.

The City of San Francisco filed suit to vindicate the mayor’s position, several other lawsuits were filed by private plaintiffs, and they were all consolidated into one proceeding, in which Superior Court Judge Richard Kramer ruled in favor of same-sex marriage, only to be reversed, 2-1, by the Court of Appeal.

Chief Justice George pointed out that the question before the California court was qualitatively different from the question faced by all prior state high courts that have confronted the marriage issue, because California had enacted a domestic partnership law that provided almost all of the state law rights and responsibilities of marriage. At the same time, opponents of same-sex marriage had won a state-wide initiative in 2000, enacting a statutory provision that same-sex marriages would be neither recognized nor valid in the state. The legislature had twice in recent years passed bills authorizing same-sex marriage, each vetoed by Governor Arnold Schwarzenegger on the ground that the legislature’s authority to take such action had been extinguished by the initiative.

The court agreed with the governor on that point, finding that Proposition 22 applied to the performance of marriages in California and thus had limited the legislature’s authority. The only ways to establish same-sex marriage would be for the people by initiative to overrule Proposition 22, or for the court to declare that same-sex couples are constitutionally entitled to marry.

The court reached its conclusion through two routes. First, it found that the right to marry is a fundamental right under the California constitution, so that it could be denied only for the purpose of achieving a compelling state interest, not shown here by the state, and second, it found that creating a different – and arguably inferior – family status for same-sex partners violated the state’s obligation to provide equal protection of the laws to all its residents.

The court agreed with the plaintiffs that the correct way to characterize the fundamental right question is whether there is a fundamental right to marry from which same-sex couples are unconstitutionally excluded, rather than, as the state argued, whether there is a fundamental right to same-sex marriage. The court referred to Perez v. Sharp, its landmark 1948 ruling striking down the state’s law against interracial marriages. In Perez, the court had not treat the question as whether there was a fundamental right to interracial marriage; rather, the question was whether different-race couples were being wrongly denied the fundamental right to marry.

"The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics," wrote George. "It is important both analytically and from the standpoint of fairness to plaintiffs’ argument that we recognize they are not seeking to create a new constitutional right – the right to ‘same-sex marriage’ – or to change, modify, or (as some have suggested) ‘deinstitutionalize’ the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits – accompanied by the same mutual responsibilities and obligations – as this constitutional right affords to opposite-sex couples."

Agreeing with the plaintiffs’ argument, the court found that the "constitutional right to marry thus may be understood as constituting a subset of the right of intimate association – a subset possessing its own substantive content and affording a distinct set of constitutional protections and guarantees," and that prior California decisions established that "the right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual." George went on to enumerate the many ways that both individuals and society benefit from the institution of marriage, pointing out that those benefits equally apply in the case of same-sex couples.

"Because our cases make clear that the right to marry is an integral component of an individual’s interest in _personal autonomy_ protected by the privacy provision of article I, section 1, and of the _liberty interest_ protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry – like the right to establish a home and raise children – has independent _substantive_ content, and cannot properly be understood as simply the right to enter into such a relationship _if (but only if)_ the Legislature chooses to establish and retain it," wrote George, going on to say that the right includes a "positive right to have the state take at least some affirmative action to acknowledge and support the family unit."

Concluding on this point, George wrote, "In light of the fundamental nature of the substantive rights embodied in the right to marry – and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society – the California Constitution properly must be interpreted to guarantee this basic civil right to _all_ individuals and couples, without regard to their sexual orientation."

The court found that the state’s appeal to tradition, or the "channeling procreation" arguments advanced by some of the other parties and accepted by some other state courts, could not meeting the compelling state interest test when this fundamental right was at issue. "Whether or not the state’s interest in encouraging responsible procreation properly can be viewed as a reasonably conceivable justification for the statutory limitation of marriage to a man and a woman for purposes of the rational basis equal protection standard, this interest clearly does not provide an appropriate basis for defining or limiting the scope of the constitutional right to marry," George commented. "None of the past cases discussing the right to marry – and identifying this right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution – contains any suggestion that the constitutional right to marry is possessed only by individuals who can be counted upon to take precautions in planning for parenthood. Thus, although the state undeniably has a legitimate interest in promoting ‘responsible procreation,’ that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim the protection of the fundamental constitutional right to marry." He also noted that in the past the California court has frequently observed that marriage is not just about having and raising children, but is also about entering into "the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime," regardless whether the married couple has children.

Moving to the equal protection point, George noted that it was a question of first impression for the California Supreme Court whether discrimination based on sexual orientation was "suspect" and thus subject to the "strict scrutiny" judicial review. California already treats sex discrimination as suspect, but the court rejected the argument that this is a sex discrimination case. In common with many other state courts, the court concluded that the statute did not discriminate between men and women, but rather between same-sex and different-sex couples, so this is a sexual orientation discrimination case. "In drawing a distinction between opposite-sex couples and same-sex couples, the challenged marriage statutes do not treat men and women differently," wrote George. "Persons of either gender are treated equally and are permitted to marry only a person of the opposite gender. In light of the equality of treatment between genders, the distinction prescribed by the relevant statutes plainly does not constitute discrimination on the basis of sex as that concept is commonly understood."

Rather, he continued, "a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender different from individuals who are attracted to persons of the opposite gender, does not treat an individual man or an individual woman different _because of_ his or her _gender_ but rather accords differential treatment _because of_ the individual’s _sexual orientation_." And, rejecting the state’s argument that the statute does not premise the right to marry on sexual orientation, he wrote, "By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would choose to marry a person of their own sex or gender. A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation."

George commented that it was "sophistic" to suggest that there is no sexual orientation discrimination because gay men are free to marry women and lesbians are free to marry men.

Treating the case as one of sexual orientation discrimination, the court had to determine the appropriate level of judicial review, which required determining whether sexual orientation should be treated as a "suspect classification," a question that the U.S. Supreme Court has yet to confront head on. George noted that courts have generally not treated sexual orientation as constitutionally "suspect," which would have the effect of placing the burden on the state to show a compelling interest to justify discriminating on that basis. By treating sexual orientation as not "suspect," courts in prior marriage cases have made the test whether the state had a rational basis for distinguishing between same-sex and opposite-sex couples in providing access to marriage, a test that was found to met in all but the Massachusetts ruling.

In this case, the court of appeal decided that sexual orientation met some of the criteria for suspect classification – "the characteristic bears no relation to a person’s ability to perform or contribute to society and is associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities" – but found that sexual orientation was not an "immutable characteristic," which the lower court believed to be an essential criterion for this purpose. "We disagree, however, with the Court of Appeal’s conclusion that it is appropriate to reject sexual orientation as a suspect classification. . . on the ground that there is a question as to whether this characteristic is or is not ‘immutable,’" wrote George, asserting that "immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes." He pointed out that California cases treat religion as a suspect classification. "Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment," George asserted.

The state has also argued that "political powerlessness" should be a criterion, and pointed to the legislative successes of the gay rights movement in California as showing that gay people do not need the help of judicial intervention to achieve their political goals. Although some California equal protection cases had pointed to a group’s political powerlessness as a factor, George rejected it as an essential element of this analysis, pointing out that "if a group’s _current_ political powerlessness were a prerequisite to a characteristic’s being considered a constitutionally suspect basis for differential treatment, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications." George observed that the emphasis of the court’s opinions had been on looking at the historical mistreatment of particular groups, and at whether "outdated social stereotypes" were being used to justify discrimination.

"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," wrote George. "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."

The court concluded that "an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s rights," and, furthermore, "that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision."

The court also rejected the state’s argument that it should use any less rigorous a standard in evaluating anti-gay discrimination than it used to evaluate race or sex discrimination.

The court had to respond to the state’s argument that by passing the Domestic Partnership Act, the state had given to same-sex couples substantially the same legal rights and responsibilities as marriage. To the state, the withholding of the name of marriage was not an issue of constitutional dimensions. The court strongly disagreed, pointing out that the issue was one of equal treatment, not of mere nomenclature, insisting that by giving a different label to the family status of same-sex couples, the state was posing "a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry." Having previously noted that there were at least nine identified legal differences between marriage and domestic partnership under the existing law, the court also found that the different nomenclature itself created difficulties, citing the recent New Jersey Commission Report documenting how civil union partners in New Jersey had encountered unequal treatment because their relationships were not characterized by the state as marriages.

The court found that calling same-sex relationships domestic partnerships rather than marriages had symbolic importance, and would lead people to see them as effectively "a mark of second-class citizenship," leading to confusion in everyday life and unequal treatment. Furthermore, the court said that different nomenclature even threatened to violate privacy rights of same-sex partners, since every time an individual identified herself as "domestically partnered" rather than as "married," she was effectively also having to come out as gay, regardless of the circumstances. This "may expose gay individuals to detrimental treatment by those who continue to harbor prejudices that have been rejected by California society at large," and would violate privacy rights guaranteed by the state constitution.

The court found totally unavailing and noncompelling the state’s purported justifications for maintaining the distinction, finding that traditional nomenclature had no special claim for deference in light of the seriousness of the constitutional deprivation. It decisively rejected an argument advanced by some of the non-state parties that somehow the California Constitution had itself frozen the definition of marriage based on the common law meaning of the 19^th century because of some references to the opposite-sex aspect of marriage in that document. And it rejected the state’s argument that there would be a violation of constitutional separation of powers for the court to "redefine" marriage. According to the majority of the court, it was not "redefining" anything, but rather determining whether the exclusion of certain individuals from access to a fundamental right was based on a permissible ground. Wrote George, "a court has an _obligation_ to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.

At key points during the opinion, Chief Justice George favorably cited and quoted from the disssenting opinions of New York Chief Judge Judith Kaye in Hernandez v. Robles and New Jersey Chief Justice Deborah Poritz in Lewis v. Harris, supporting the right of same-sex couples to marry. And the court also referred to the U.S. Supreme Court’s opinion in Lawrence v. Texas, quoting Justice Anthony M. Kennedy’s assertion that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." "For this reason," wrote George, "the interest in retaining a tradition that excludes an historically disfavored minority group from a status that is extended to all others – even when the tradition is long-standing and widely shared – does not necessarily represent a compelling state interest for purposes of equal protection analysis."

The court’s remedy was to declare Proposition 22 invalid, to strike from the state’s marriage statute the key phrase limiting marriage to the union of one man and one woman, and to order that the remaining language of the marriage statute, thus rendered gender-neutral, be applied to allow same-sex couples to marry on the same basis as different-sex couples. In other words, no new legislation is required to effectuate the court’s decision, merely the deletion of some unconstitutional language from the existing marriage statutes.

The court’s opinion stated that the court of appeal decision is reversed and "the matter is remanded to that court for further action consistent with this opinion." The court also awarded the costs of litigation (not attorneys fees) to the plaintiffs as "prevailing parties." This means that a final order effectuating the court’s opinion may take a few weeks to emerge, as the case is formally sent back to the court of appeal, and then formally transmitted back to Judge Kramer to issue the appropriate order to state officials.

Appended to the court’s decision was a ten-page list of attorneys who had participated in the case in some capacity, either directly representing parties or participating in the numerous amicus briefs filed in the case. The attorneys arguing to the court were: Shannon Minter, Legal Director of National Center for Lesbian Rights, for a group of plaintiff couples; Therese M. Stewart, Chief Deputy City Attorney of San Francisco, for the municipal plaintiff; and Michael Maroko, of Allred, Maroko & Goldberg (Los Angeles) and Waukeen Q. McCoy, a solo practitioner, who represented additional private plaintiffs. Numerous other groups and attorneys participated in the case by filing amicus briefs, too numerous to list here, but anybody who downloads the opinion from the court's website will find the complete list.

Comments

[robintyler]

I am one of the orignal plaintiffs in the CA Supreme Court Lawsuit. The city of San Francisco
did not file the first lawsuit. We announced our lawsuit (Tyler vs County of Los Angeles) on Feb. 12,
2004, 5 hours before Gavin
started marrying couples.
Our attorney, Gloria Allred,filed the lawsuit on
Feb. 24 that month. (also for Rev. Troy Perry and his
husband Phillip De Blieck to have their Canadian marriage recognized.) When
the CA Supreme Court ruled against the SF Marriages, months later, the LGBT lawfirms and city filed a lawsuit on behalf of SF Plaintiffs. Those lawsuits were consoliated with us. For futher information go to http://www.prnewswire.com/
Sincerely,
Robin Tyler, plaintiff
(partner is Diane Olson).
Pleae let me know if you
correct the misinformation.
The lawsuit started in Beverly Hills. robintyler@robintyler.com

[Art Leonard]

I'll correct it on the posting.

[Jeremy Mykaels]

On a local newscast, they had a judge who commented on this landmark decision and she also talked about the probability that any attempt to overturn this decision by the initiative process would most likely be found to be unconstitutional as well based on the statement on page 6 of the decision as follows, "...we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative
process." I haven't seen much about this from most other sources. If this is the case, can the initiative planned for November be invalidated based on this premise or do we have to go through the whole process and spend millions of dollars to fight the amendment? Can this be checked out?

[Lavi Soloway]

So what of the likelihood that a ballot initiative could amend the constitution and effectively nullify the decision? Does the Equal Protection argument insulate us at all from that effort, or are we as vulnerable with this decision as written as we would have been if it had not been as far reaching?

[Art Leonard]

The court was there referring to the initiative that approved Proposition 22, the anti-same-sex marriage statute. I don't think the state constitution can be used to invalidate a constitutional amendment initiative. For that, one would have to mount a federal constitutional challenge. The chances of success on that are much less certain.

[Art Leonard]

Yes, we are very vulnerable to overruling by the public in November, so it is important to put a maximum effort into defeating the amendment initiative. Contrary to some uninformed speculation I've seen on-line, the initiative does not need a super-majority to pass. The California constitution provides that an initiative to amend the constitution requires only a majority of the votes cast. And I believe the only way to challenge it would be a federal constitutional challenge.

[Jeff]

What's ridiculous is that the only difference in California between a popular initiative and a constitutional amendment is that the former requires signatures from 5% of the number of voters in the last gubernatorial election to get on the ballot, while the latter requires 8% (see http://www.sos.ca.gov/elections/initiative_guide.htm). (For that reason, I don't understand why the Prop 22 people didn't use the amendment process initially, instead of the initiative process, although I'm thankful that they didn't.)

I find this problematic. Amending a constitution is supposed to be harder than passing an ordinary law because constitutional law is supposed to be "higher" than ordinary law, and I hardly think 8% instead of 5% qualifies as very much harder. If you can simply amend the constitution by a simple one-time majority popular vote, what's the point of having a constitution?

This is particularly troublesome when it comes to individual rights. One of the purposes of a constitution is to protect individual rights from being taken away by a majority. If a majority of Californians can remove a minority's individual rights through simple popular vote, something is really wrong.

[Bill Leffler]

If the vote in November rejects this decision's holding regarding same-sex marriage, what effect would that have on the decision's other holding that sexual orientation is henceforth a suspect classification?

[Jeff]

Another comment from me -- actually a question: I keep reading that the decision goes into effect in 30 days, but I don't see that anywhere in the opinion. Where does the 30 days come from?

[Art Leonard]

The 30 days comes from the process following the court's ruling, and is based, so I'm told, on procedural rules followed by the courts. What the supreme court did was to remand the case to the court of appeal with directions to take action consistent with the opinion. That means the court of appeal is to remand the case back to the trial judge, then the trial judge will frame and issue an order implementing the court's ruling. This is estimated to take about 30 days, although some have speculated it might take a bit longer.

As to the question of what effect passage of the initiative would have on the court's ruling, the only effect in terms of doctrine, I believe, would be to overturn the finding that the existing ban on same-sex marriage violates the constitution, because the amendment would itself ban the state from performing or recognizing same-sex marriages. The other doctrinal rulings of the court, including the ruling on sexual orientation as a suspect classification, would remain intact.

I've been thinking a lot about the opinion since yesterday, and I am planning to make a separate blog posting with some of my musings later in the day.

[MJF]

Thank you for such a great article on this issue. Since the court based this decision on Article 1 section 1 and due process, do you think that the proposed initiative might be a revision of the those portions of the constitution and thus the initiative would be invalid.

Consider an initiative based constitutional amendment that stated that the state courts must only follow the federal constitution with regards to the who qualifies as a suspect class and what fundamental rights citizens of california have. I believe that would be a revision of the california constitution and would not be considered an amendment to the constitution.

Likewise, denying a declared suspect class a fundamental right based on the constitution would essentially revise the constitution because the constitution would have to be interpreted as saying everyone can enjoy the rights provided in this constitution excepts for same sex couples. I seriously think the court would strike this because of the current decision.

I'm not going to rely on this analysis as a reason to not fight the initiative tooth and nail, but I thought the proposed amendment posed an interesting legal question of whether voters can deny a suspect class of their fundamental rights by initiative process. My gut says no, but my brain says don't let it get that far.

[Art Leonard]

I think we need to focus on the text of the proposed amendment, which is identical to the text of Proposition 22. It narrowly addresses the issue of marriage and does not say anything about other constitutional provisions. It also says nothing about doctrine. So I don't think it would change anything else in the California constitution.

If it passes, it could be challenged on federal constitutional grounds. Although Kennedy said that he wasn't going there in Lawrence, Scalia in dissent cogently pointed out that the majority's reasoning meant that same-sex couples would have a federal constitutional right to marry as a matter of liberty under the due process clause. (Most people have treated Scalia's dissent as hyperbolic hysteria, but he has a point there, which we could well use.)