Terrance Heath

What It All Means

Filed By Terrance Heath | May 22, 2008 6:00 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: California, California State Supreme Court, civil rights, marriage, same-sex

I was on NPR's News & Notes this afternoon talking about the California marriage decision, so this seemed like as good a time as any to sort out my thoughts on the ruling and its implications.

After recovering from the emotional impact of the ruling, I sat down with the intention of reading the whole thing. I must confess, I only got through the first 90 pages. But after sorting through the legalese, what I saw was a ruling that effectively knocked the legs from under much of the religious conservative (radical right, theocratic, etc.) argument against marriage equality, and even went so far as to speak to some previous state supreme court rulings on the issue.

I'll admit up front, I'm no lawyer. So I invite any lawyers out there to correct me on any legal issues I miss or get wrong. On the other hand, I know some other gay bloggers whom I respect have philosophical objections to the California ruling, though they're in favor of same-sex marriage. So, I'll say up front that I have no philosophical objections to the ruling, nor do I think the court was wrong in making the ruling.

Now that we've got that out of the way:

As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), 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. These core substantive rights include, most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

This is the ruling. These are the words that matter, but the explanations that follow are a skillful defanging of many, if not all, of the anti-equality arguments. But leading up to this is an important bit about just what the court had to decide.

Accordingly, the 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 question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution. We are aware, of course, that very strongly held differences of opinion exist on the matter of policy, with those persons who support the inclusion of same-sex unions within the definition of marriage maintaining that it is unfair to same-sex couples and potentially detrimental to the fiscal interests of the state and its economic institutions to reserve the designation of marriage solely for opposite-sex couples, and others asserting that it is vitally important to preserve the long-standing and traditional definition of marriage as a union between a man and a woman, even as the state extends comparable rights and responsibilities to committed same-sex couples. Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.

This I read as a charge to determine whether or not a "separate but equal" status -- in which same-sex couples are afforded the same rights and protections, but are not considered "married" -- is constitutional in California or not. But it's the next part, which came prior to the ruling itself, that stood out to me.

As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), 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. These core substantive rights include, most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

I know this ruling only applies to California, but I'm reading it here in light of what we've seen in other states. Domestic partnership can be abrogated by either the legislature or the initiative process, as we've seen in Michigan, where domestic partnership was revised to take away the health insurance benefits same-sex couples had previously. Reciprocal beneficiaries can be abrogated by either, as seen in Hawaii, where reciprocal beneficiary status as established as a kind of preemptive strike against a state supreme court decision that legislators feared would establish same-sex marriage. (This is the same case that led to DOMA.) Shortly thereafter, the status was revised to eliminate several benefits -- public employees health fund, public employees retirement, health insurance and life insurance -- which were initially included.

The truth is any status that is separate from the established status of marriage is subject to be redefined or done away with and couples who rely upon such status can find their rights reduced or eliminated altogether. Any time an election rolls around they can literally wake up in the morning with fewer benefits and protection than they had before, or even to find their legal relationship has been voted out of existence altogether. That's something their legally married heterosexual neighbors never have worry much about because it's unlikely that marriage is going to change much as a legally recognized relationship status.

The ruling establishes a beachhead against the creeping majoritarianism which declares that the majority must always rule at all times in all things; essentially that the majority is right by virtue of being the majority- by virtue of its might in numbers. In that sense, the ruling establishes that there are some individual civil rights that are not, and should not, be subject to public vote. I know there are some gay bloggers who believe same-sex marriage as a civil right would be best achieved through the legislative or initiative process. But the problem with putting a civil right to a popular vote is that what the majority giveth and the majority can taketh away. If a civil right as basic as marriage depends on an up or down majority vote, then it's not an inalienable right, and if such a basic right is not an inalienable right, what is?

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple's right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of "marriage" exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.

This has been seen in cases where couples have traveled to states where their unions are not recognized and encountered challenges in medical situations. Also couples who move to a state where their union is not recognized face the loss of health insurance for one partner or another.

Custody cases are another example. None of these problems are addressed by domestic partnership or civil unions.

As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents -- like gender, race, and religion -- a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

This knocks another leg out from under the anti-equality, I think. The opposition likes to argue, sometimes seriously and sometimes with a barely suppressed chuckle (I assume at what they perceive as their own cleverness), that gays have the same right to marry as heterosexuals the right to marry a member of the opposite sex.

Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California's current marriage statutes -- the interest in retaining the traditional and well-established definition of marriage -- cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

This basically says that affording same-sex couples marriage equality does not deprive opposite-sex couples of any rights or protection that they currently enjoy, but same-sex couples will be subject to the same obligations and afforded the same benefits. Time and time again I've asked opponents of marriage equality to name for me the tangible benefits and protections opposite-sex couples and their families will lose if same-sex couples attain marriage equality. I've yet to hear which of the 1,000+ benefits and protections they will actually lose. Instead, what I get are answers that can be paraphrased down to this: "Our marriage just won't feel special anymore."

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise -- now emphatically rejected by this state -- that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

Essentially, discrimination and "separate but equal" establishes a second class citizenship, because -- as explained earlier in the ruling-- separate is made unequal by its vulnerability. Married couples are as legally married this year as they were last year and will be next year, barring any trips to divorce court. Domestic partnership, reciprocal beneficiary status, and civil unions can change significantly and thus the benefits and protections they offer are not reliable because a legislative vote or ballot initiative can take them away.

I could go on (goodness knows the court did, for 165 pages), and I will in another post. But I think John Cloud was right when he said, "By taking on virtually every objection to marriage rights for same-sex couples, even the most transparently bigoted, the court has produced a document that will be cited for generations."

I hope so, as it can only speed on the day when marriage equality is a reality. I look forward to telling my grandchildren about the day this ruling came down and having them wonder what the big deal was about a couple of old guys like me and their grandpa wanting to get married.

Crossposted from The Republic of T.


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beergoggles | May 22, 2008 7:27 PM

we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents -- like gender, race, and religion -- a constitutionally suspect basis upon which to impose differential treatment

IANAL, but this to me was the defining statement from the court upon which everything hinged.

If orientation is placed under strict scrutiny, the state must not just show rational basis for discrimination, it must show a compelling interest in doing so. Failing that, the state has no case.

It also plays into whether the court views it narrowly as a constitutional right for SSM or broadly view of a constitutional right to marriage for same gender couples.

Those are the defining legal arguments to take. Whenever a court has viewed SSM narrowly we have lost, when they have viewed marriage broadly we have won. Adding strict scrutiny forces the hand in viewing it broadly.

One justice mentioned according orientation a suspect class classification in the NY CoA decision which we lost. If more judges in NY had agreed that orientation was a suspect class, we would have won there as well.

I REALLY REALLY enjoy NPR. I'm so glad/jealous you were on!

I wish I'd known you were going to be on - I'd have listened. I was in the car at the right time to hear you, but I was yakking on the phone instead of listening to the radio!