West Law Report

California chief justice: same-sex marriage ruling was one of his toughest

Posted in Same-sex marriage by mrkooenglish on May 18, 2008

(Photo: Paul Sakuma / Associated Press)

LA Times interviews Judge Ronald George.

Discrimination of sexual orientation in California

Posted in Same-sex marriage, sexual orientation discrimination by mrkooenglish on May 17, 2008

Kenji Yoshino, the Yale law professor, wrote in Slate explaining that “why the California Supreme Court did more than legalize gay marriage”.

He compared the opinions of Massachusetts and California:

The Massachusetts opinion of 2003 will always have the fame of a first mover. In it, the state high court found that the exclusion of gays from marriage deprived them of both liberty and equality rights protected under the state constitution. The California Supreme Court came to the same conclusion, but in terms that have more legal bite and greater political consequence.

The legal difference between the two opinions lies in the so-called “rational basis” review used by the Massachusetts court and the “strict scrutiny” deployed by the California Court. In constitutional parlance, these terms describe how closely a court will examine state legislation: will it give the legislature the benefit of the doubt, or not? Rational basis review is so lenient that it almost always results in the validation of state policies (in this sense, the 2003 Massachusetts ruling was an aberration), while strict scrutiny is so stringent that it almost always results in the invalidation of such policies. In other words, the standards supposedly only express how closely the court will look at laws, but looks can kill.

And he looked closer to the writing of Judge George:

Chief Justice Ronald M. George first found that the exclusion of gays from marriage violated their fundamental right to marry, thereby drawing strict scrutiny from the court. This meant that the state would have to produce a compelling reason to bar gays from what the court deemed “the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.” In a crucial move, Chief Justice George rejected the state’s argument that tradition was such a reason. Allowing tradition to thus entrench itself, he said, would have allowed for laws barring interracial couples. And, as he noted, the California Supreme Court struck down a ban on interracial marriage in 1948, almost two decades before the U.S. Supreme Court did in Loving v. Virginia.

Although he could have decided the case on this basis alone, the Chief Justice kept going. He explicitly found that discrimination against gays, on the basis of their sexual orientation, was equivalent under the California state constitution to discrimination against racial minorities. To my knowledge, California’s is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in).

The effect of the ruling would not only on marriage:

For gays, this pronouncement is critical because it is portable—that is, gays can now challenge any California state policy that discriminates on the basis of sexual orientation. As Marty Lederman points out elsewhere in Slate, this in its own right is a signal advance for gay people.

Dissent on the same-sex marriage ruling

Posted in Same-sex marriage by mrkooenglish on May 17, 2008

Both dissent opinions are saying that the court would not be the best place to settle the problem. Judge Baxter:

In a dissent, Justice Marvin Baxter agreed with many arguments of the majority but said that the court overstepped its authority and that changes to marriage laws should be decided by the voters. The majority should have deferred to the Legislature on whether to allow same-sex marriage, particularly given the increased legal protections for same-sex couples enacted in recent years. “But a bare majority of this court,” Justice Baxter wrote, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.”

Judge Corrigan:

Also dissenting, Justice Carol A. Corrigan wrote that her personal sympathies were with the plaintiffs challenging the bans on same-sex marriage. But Justice Corrigan said the courts should allow the political process to address the question.

“We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root,” she wrote. “If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

Dahila Lithwick, the editor, wrote in Slate that the two Judges just don’t want like to be called “activist”.

Not to be outdone as the winner of the “I am not an activist” Olympics, Justice Carol Corrigan opens her dissent with the announcement that she is so not an activist that even though she personally believes that Californians “should allow our gay and lesbian neighbors to call their unions marriages,” the court nevertheless overstepped its bounds in striking down the state marriage laws. Writes Corrigan, “[T]he principle of judicial restraint is a covenant between judges and the people from whom their power derives. … [I]f there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

Justice Corrigan’s model of judicial restraint is not quite constitutional originalism or even John Roberts-style minimalism. Like Baxter, she espouses some kind of shabby-chic jurisprudence in which state statutes endure a constitutional distressing process that allows them to become more and more constitutional over time. Standards and values can change, she allows, but only when the people have lived with those changes for some set period of time. It’s not so much that the majority is “activist,” therefore. Their real problem is that they are somehow “tacky.”


Posted in Same-sex marriage by mrkooenglish on May 17, 2008

Read the opinion of the Supreme Court of California.

But the ruling can be as short-lived as a month. Religious and conservative would put a constitutional amendment to undo the ruling and ban gay marriage.

Same-sex marriage as civil liberty

Posted in Same-sex marriage by mrkooenglish on May 17, 2008

(Photo: Jim Wilson/The New York Times)

Stuart Gaffney, left, and John Lewis reacted to the California Supreme Court decision in San Francisco.

NY Times Editorial called the ruling of California Supreme Court upholding the right of same-sex couples to marry a “victory for equality and justice”.

The Editorial quote the opinion, comparing the ruling with the one about interracial marriage:

In striking down the ban for violating state constitutional provisions protecting equality and fundamental rights, the court’s 121-page opinion fittingly drew on a 1948 decision in which California’s high court removed the bar to interracial marriage 19 years before the United States Supreme Court followed suit.

The new opinion found that “the right of an individual to establish a legally recognized family with a person of one’s choice” is fundamental. The court said California’s strong domestic partnership statute was not enough to solve the inequality problem.

“An individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold rights,” wrote Chief Justice Ronald George, first appointed to the bench by Gov. Ronald Reagan.

He noted that “tradition alone” did not justify the denial of a constitutional right to same-sex couples, any more than it did to interracial couples.

Another analysis of the paper mentioned the past ruling in the court:

The Supreme Court here was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The United States Supreme Court did not follow suit until 1967.

Ms. Stewart asked whether giving interracial couples the same rights under a different name — “say we called it transracial unions instead of marriage,” she said — would have satisfied the state Constitution in 1948.

Several of the justices seemed receptive to the analogy. Chief Justice Ronald M. George, seen by many here as the swing vote on a closely divided court, paused three times during the argument to quote from the Perez decision.

“The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” Chief Justice George said at one point, quoting a passage from the Perez decision by Justice Roger J. Traynor, who would go on to become chief justice of the court.

And thus, it’s said “same-sex marriage and racial justice find common ground” It can be read in the opinion:

Not long into the oral argument before the California Supreme Court in March over whether gay and lesbian couples have a constitutional right to marry, Chief Justice Ronald M. George showed his hand.

Three times he quoted from the court’s 1948 decision in Perez v. Sharp that struck down a state ban on interracial marriage, a high point in the history of a prestigious and influential court.

“The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” Chief Justice George said, quoting Perez.

It is compared with other landmarket rulings:

As divisive as Thursday’s decision was, the Perez decision was a judicial earthquake. Six years would pass before the United States Supreme Court, in the 1954 Brown v. Board of Education decision, ruled that racially segregated public schools violated the Constitution. Thirteen more years would pass before that court followed Perez in striking down bans on interracial marriage in Loving v. Virginia in 1967.

Why it is important?

Perez helped answer a central question before the court. Why was California’s domestic partnership law, which provides virtually all of the legal rights and obligations that go with heterosexual marriage, not enough?

Therese M. Stewart, a lawyer for the City and County of San Francisco, had an answer at the argument. She asked the court whether it would have satisfied California’s Constitution in 1948 to give interracial couples the same rights under a different name. “Say we called it ‘transracial unions’ instead of marriage,” she said, in a mocking tone.