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Gay marriage litigation continues throughout the several states. On May 15, 2008, the California Supreme Court struck down California’s limitation of the term “marriage” to opposite-gender couples in In re Marriage Cases, a consolidation of several gay marriages cases. In its decision, the court held that discrimination based on sexual orientation must be analyzed under a strict scrutiny standard of review because it held that sexual orientation is a suspect class, the first court in the nation to do so. While California already permitted same-gender couples to enter into domestic partnerships, In re Marriage Cases meant that, starting at 5:01 PM on June 16, 2008, same gender couples could marry officially. This article, the fifth in a series, will briefly analyze this decision.

I. Procedural History

Plaintiffs, several gay couples, challenged the constitutionality of California Family Code sections 300(a) and 308.5, which limit marriage between a man and a woman.1 The plaintiffs also challenged California’s 2003 Domestic Partner Act, codified at California Family Code section 297 et seq., as constitutionally insufficient on equal protection grounds.2 

On February 12, 2004, the City of San Francisco, at the instruction of Mayor Gavin Newsom, began issuing marriage licenses to same-sex couples. The following day, two separate actions were filed in the San Francisco Superior Court seeking an immediate stay and writ relief to prohibit the licenses’ issuance.3 The superior court refused to grant an immediate stay. Bill Lockyer (D), who was then California’s Attorney General, filed two separate petitions—along with a number of other parties—seeking to have the Supreme Court issue a writ of mandamus.4 On March 11, 2004, the California Supreme Court issued an order to show cause in these writ proceedings and directed city officials to enforce the existing marriage statutes and refrain from issuing unauthorized ones; the order also stayed the Proposition 22 and Campaign proceedings.

Shortly afterwards, the city filed a writ petition and a complaint for declaratory relief in superior court.5 Two similar actions were then filed challenging the constitutionality of the statutes.6  Subsequently, the CCSF, Woo, and Tyler actions, along with the Proposition 22 and Campaign actions and Clinton v. State of California, were consolidated into a single proceeding entitled In re Marriage Cases. While In re Marriage Cases was pending in superior court, the California Supreme Court issued its decision in Lockyer, which held that San Francisco officials exceeded their authority, ordered San Francisco officials to comply with California’s existing marriage statutes, and voided approximately 4,000 same-sex marriages that had already been performed.

After Lockyer issued, the superior court, in In re Marriage Cases, heard arguments on the constitutionality of California’s statutes limiting marriage to a man and a woman. On April 13, 2005, the superior court found those statutes constitutionally infirm. The superior court confined its decision to the plaintiffs’ equal protection challenge, determined that the statutes must be evaluated under strict scrutiny, and held that the statutes failed this standard of review. On appeal, the court of appeal, in a two-to-one decision, reversed the superior court’s ruling on the substantive constitutional issue and found that same-gender couples did not have a constitutional right to marriage.7 The California Supreme Court granted review and issued its ruling on May 15, 2008.

II. Majority Opinion

A. Fundamental Right to Marry

Chief Justice Ronald George wrote the 4-3 majority opinion.8 He began by stating that the gay marriage issue before the California Supreme Court was different than that faced by other state supreme courts, namely that the question was not whether California could limit marriage to opposite-gender couples while denying same-gender couples similar rights, but rather whether California’s failure to refer to the same-gender relationship scheme as a “marriage” (as opposed to a domestic partnership) violated California’s constitution. Chief Justice George noted that some states such as New Jersey, Vermont, and Connecticut have civil unions and that Kerrigan v. Comm’r of Pub. Health, currently pending in Connecticut, addresses a question similar to that in California.9 He also took great pains to state that the majority was not deciding policy, writing that “[w]hatever 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.”10

Chief Justice George relied heavily on Perez v. Sharp in reaching the majority’s decision.11 Perez outlawed anti-miscegenation laws in California, which the U.S. Supreme Court would do nearly twenty years later in Loving v. Virginia.12 The majority leaned heavily on Perez to affirm that the right to marry is a fundamental right. The majority noted that “privacy” is specifically mentioned in California Constitution Article I, Section 1’s inalienable rights. Thus, the majority held that the right to marry is part of personal autonomy protected by that privacy interest, as well as the liberty interest which is protected by the due process clause of Article I, Section 7. T hus, the majority declared that the right of same-gender couples to marry has independent substantive content which the legislature cannot prohibit, stating that the legislature cannot “define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons.”13 Chief Justice George emphasized that same-gender couples have the right to have their family relationships accorded dignity and respect equal to that accorded to other officially recognized families, and thus the term “marriage” must be afforded to both same- and opposite-gender couples, i.e., the form is as important as the substance.14

The majority admitted that both Perez and Loving dealt with opposite-gender marriages, but, analogizing between diff erent-race and same-gender couples, stated 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.”15 The chief justice attempted to explain that the majority was not creating a right to gay marriage, but rather simply stating that the right to marry applies to same-gender couples as well as opposite-gender ones.16 The majority stated that, under Perez and Loving, one could not have “marriage” and “trans-racial marriage.” The majority stated that the constitutional right to marriage is not about procreation, thus dismissing the defendants’ argument that procreation is a part of marriage and that only opposite-gender couples can create their own biological children. The majority noted that California still permitted opposite-gender couples who were physically unable to conceive a child to marry. The majority did not find any cases which discussed procreation or child-rearing within the context of heterosexual marriage to be persuasive, as same-gender couples in California could adopt and raise children, opposite-gender couples could have kids and raise those kids outside the institution of marriage, and marriage’s government sanction and sanctuary for the family should be available to both opposite- and same-gender couples. The majority also rejected the defendants’ “responsible procreation” argument, finding no rational basis for it, and stating that the constitutional right to marry was not possessed only by those who could accidentally conceive or denied to people who planned. The majority cited Griswold v. Connecticut, noting the Griswolds fought to use contraception to prevent procreation, and Turner v. Safley, where a prisoner without conjugal visits still had the fundamental right to marry.17 The majority also rejected the defendants’ argument that de-linking marriage and procreation sends a message that it is acceptable to have children out of wedlock.

The majority also dismissed the defendants’ argument that marriage is traditionally between a man and a woman, by essentially stating that tradition alone is not adequate. The majority conceded that, since California’s inception, civil marriage was not only different from religious marriage, but also that civil marriage was consistently defined as between a man and a woman.18 The majority found such deeply-rooted definitions and traditions unpersuasive, stating that “it is apparent that history alone does not provide a justification for interpreting the constitutional right to marry as protecting only one’s ability to enter into an officially recognized daily relationship with a person of the opposite sex.”19 Chief Justice George described how society’s views have changed towards both racial miscegenation and the role of women in the workplace.20 The court emphasized that:

[f]or similar reasons, it is apparent that history alone does not provide a justifi cation for interpreting the constitutional right to marry as protecting only one’s ability to enter into an officially recognized family relationship with a person of the opposite sex. In this regard, we agree with the view expressed by Chief Judge Kaye of the New York Court of Appeals in her dissenting opinion in Hernandez v. Robles, supra, 855 N.E.2d 1, 23: “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.21

Chief Justice George also cited People v. Belous, stating that:

[c]onstitutional concepts are not static. ‘In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.’ 22

Among the many other cases which the majority cited was Lawrence v. Texas.23

III. Equal Protection

Article I, Section 7 of the California Constitution contains equal protection guarantees. An equal protection claim in California is analyzed either under a strict scrutiny or rational basis test; unlike United States v. Virginia, California does not recognize an intermediate or heightened level of scrutiny for gender-based discrimination.24 Chief Justice George summarily rejected the dissent’s argument that same-gender and opposite-gender couples are not similarly situated. He also rejected the plaintiff s’ argument that California’s marriage limitations treated men and women dissimilarly on the basis of gender, stating that persons of either gender are permitted to marry a person of the opposite gender.25 He distinguished Perez and Loving by pointing out that the anti-miscegenation laws applied only to interracial marriages that involved whites, e.g., blacks and Latinos could get married to each other, but not blacks and whites or Latinos and whites.

Chief Justice George, however, went on to hold that sexual orientation was considered a suspect class in California, which was an issue of first impression. Interestingly, it seems he tried to lessen the precedential effect of other state supreme courts, which did not find a constitutional right to same-gender marriage, by pointing out that those decisions had one-vote margins; the California Supreme Court’s decision was 4-3. The chief justice used much of the reasoning against gender-based discrimination to support finding gays a suspect class. The majority found that the class contained an immutable trait that had no relation to the person’s ability to perform in, or contribute to, society. Further, this trait is associated with a stigma of inferiority and second-class citizenship, which is manifested by the class’s history of legal and social disabilities. Although Chief Justice George noted that the factual record did not address whether being gay was an immutable trait, he bypassed the issue by stating that “immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes,” pointing out that a person’s religion, a choice, can be considered a suspect class.26 Chief Justice George also rejected the defendants’ contention that, while gays may have been politically powerless in the past, they certainly do not lack for political power now, as evidenced by, among other things, their growing number of statutory rights. The chief justice wrote that the analysis requires considering whether a particular class was historically subject to invidious or prejudicial treatment, not just whether it currently suffers such treatment. The majority held that it was not necessary for California to deny same-gender couples the right to marry in order to protect the marriages of opposite-gender couples. Thus under the strict scrutiny standard of review, the majority found that the state had no compelling interest to prevent same-gender couples from getting married. Chief Justice George directly addressed the dissent’s contention that the legislature, and the political process, is more appropriate than the judiciary for allowing gay marriage in California. The chief justice stated that the judiciary has a responsibility to strike down any law, no matter how popular, if it is unconstitutional; he also emphasized that the California Constitution is the “ultimate expression of the people’s will.”27

IV. Dissents

A. Justice Carol Corrigan28

Justice Corrigan began by stating that, in this case, California’s constitution did not compel the court to overrule the people’s will. She stated that the majority gave short-shrift to the Domestic Partner Act, its legislative history, and the legislature’s intent behind the law. In Justice Corrigan’s view, the political process, not the judicial, is the correct way to change the traditional definition of marriage to encompass same-gender couples. She stated that the anti-miscegenation cases were inapplicable to In re Marriage Cases because the post-Civil War amendments specifically targeted the issues of slavery and racial discrimination and, thus, Jim Crow and other segregationist laws openly flouted the Constitution. Justice Corrigan also pointed out that the law does not treat samegender domestic partners differently than opposite-gender married couples (although the majority lists nine ways in which the two are still different), but “plaintiffs seek both to join the institution of marriage and at the same time to alter its definition.”29

B. Justice Marvin Baxter30

Justice Baxter’s passionate dissent began by chastising the majority for violating the separation of powers doctrine and stating that the legislative/political process was the correct one to change the definition of marriage. Justice Baxter stated that, in his view, the majority improperly used the legislature’s avoidance of creating gay marriage by adopting increasing civil rights protections for gays so that the majority could find, ironically, a constitutional right to gay marriage.31 Justice Baxter did not believe that gays should be part of a suspect class and entitled to strict scrutiny, stating that “the United States Supreme Court has never declared, for federal constitutional purposes, that a classification based on sexual orientation is entitled to any form of scrutiny beyond rational basis review.”32 Justice Baxter also disagreed with the majority’s belief that permitting same-gender couples to marry was in-line with prevailing contemporary values, stating that both Sections 300 and 308.5 were still on the books and thus reflective of the people’s will and prevailing values.

Conclusion

California now joins Massachusetts, the only other state to do so, in permitting same-gender marriage. The California Supreme Court went beyond any other state court by granting constitutional protections to gays.33 Non-California residents may marry in California and return to their respective home states, which sets up full faith and credit, and perhaps Defense of Marriage Act, issues if those home states do not recognize same-gender marriages.34 Gay marriage litigation remains on-going in several states and will continue to be controversial for the years to come.

* John Shu is an attorney at Stradling Yocca Carlson & Rauth in Newport Beach (CA). He served as a law clerk to the Hon. Paul H. Roney, U.S. Court of Appeals for the Eleventh Circuit.

 

Endnotes

1 Section 300(a) provides, in full: “[m]arriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).” See In re Marriage Cases, 43 Cal. 4th 757, 795 (2008). Section 308.5 provides, in full: “[o]nly marriage between a man and a woman is valid or recognized in California.” See id. at 796.

2 California domestic partnership is available to same-gender couples, and to certain opposite-gender couples in which at least one party is at least 62 years of age. Domestic partnership grants a wide range of rights and responsibilities similar to marriage. Governor Gray Davis (D) signed it into law in 2003, and the law took effect on January 1, 2005. California has had a domestic partnership registry since 1999, the first of its kind in the United States, which the legislature created without any court intervention. It is unclear what will happen to either the Domestic Partner Act or currentlyexisting domestic partnerships now that the California Supreme Court has granted same-gender couples the right to marry.

3 See Proposition 22 Legal Def. and Educ. Fund v. City and County of San Francisco, 2005 Cal. LEXIS 8746 (2005); Campaign for Calif. Families v. Newsom, San Francisco Super. Ct. No. CGC-04428794.

4 Lockyer v. City & County of San Francisco, Lewis v. Alfaro, 2005 Cal. LEXIS 1698 (2005) (As of this writing, Lockyer serves as California’s State Treasurer).

5 City and County of San Francisco v. State of California, Case No. 429-539 (2004).

6 Woo v. Lockyer, 27 Cal. Rptr. 3d 722 (Cal Ct. App. 2005); Tyler v. County of Los Angeles, Los Angeles Super. Ct. No. BS-088506 (2004). 

7 Justice J. Anthony Kline’s dissent, stating that same-gender couples were a suspect class and that same-gender couples sought the right to marriage, not the right to same-gender marriage, served as an early predictor of the California Supreme Court’s final decision.

8 Chief Justice George’s term expires 2010. Governor Pete Wilson (R) appointed him in 1996.

9 New Jersey, Connecticut, New Hampshire, Vermont, Oregon, the District of Columbia, Hawaii, Maine, and Washington all have some sort of civil union or domestic partnership rights. Some commentators have wondered whether California’s ruling will encourage same-gender couples in jurisdictions with civil union or domestic partnership rights to challenge those legislative schemes.

10 43 Cal. 4th at 780. The dissenting justices, among others, would contend that the majority did just that—decide policy—by striking down the law and ballot initiative.

11 32 Cal.2d 711 (1948).

12 388 U.S. 1 (1967).

13 43 Cal. 4th at 824.

14 Meaning that the Domestic Partner Act’s rights and privileges are insufficient as a matter of law because, even though they are substantively the same as the rights and privileges of marriage, a domestic partnership and a marriage are of two different forms. Chief Justice George’s focus on form practically begs the academic question as to whether the majority would have accepted a legislative scheme which referred to “heterosexual marriage” and “homosexual marriage,” or “traditional marriage” and “non-traditional marriage,” or some other pair of names.

15 43 Cal. 4th at 814-815.

16 In doing so, however, the majority cited Elden v. Sheldon, 46 Cal. 3d 267 (1988), which specified “joining of man and woman in marriage.”

17 381 U.S. 479 (1965); 482 U.S. 78 (1987).

18 It is interesting that Chief Justice George would note that California’s marriage statutes were derived from the 1872 California Code, which in turn was based on Field’s New York Draft Civil Code—and that the New York Court of Appeals, the Empire State’s highest court, found that same-gender couples had no constitutional right to marriage in New York.

19 43 Cal. 4th at 824.

20 32 Cal.2d 711 (1948); see also Sail’er Inn v. Kirby, 5 Cal.3d 1, 17-19 (1971).

21 Id.

22 43 Cal. 4th at 821. Chief Justice George pointed out that, as evidence of shifting social mores, homosexuality was once characterized as an illness. The Chief Justice did not mention, however, the legislature, in fact, changed this and other inaccurate characterizations, not the judiciary. See also People v. Belous, 71 Cal.2d 954, 967 (1969).

23 539 U.S. 558 (2003). Justice O’Connor’s concurrence attempted to carve out same-gender marriage from Lawrence’s holding:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

Id. at 585 (O’Connor, J., concurring). Justice Scalia was prescient in his dissent when he stated that Lawrence would be used as legal support in favor of gay marriage:

At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’ Ante, at 156 L Ed 2d, at 525. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,’ and then declares that ‘persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’ Ante, at 156 L Ed 2d, at 523 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct, ante, at 156 L Ed 2d, at 526; and if, as the Court coos (casting aside all pretense of neutrality), ‘when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ ante, at 156 L Ed 2d, at 518; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution,’ ibid. Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so. Id. at 604-605 (2003) (Scalia, J., dissenting) (emphasis added).

24 See 518 U.S. 515 (1996).

25 While one might find it disingenuous for gays to claim gender discrimination, that claim was almost certainly a matter of legal strategy. Until In re Marriage Cases, no court in the union had ever found that sexual orientation was a suspect class, and the rational basis test applied. See, e.g., Gay Law Students Assoc. v. Pac. Tel. & Telegraph Co., 24 Cal.3d 458 (1979). An equal protection analysis of gender-based discrimination requires an intermediate, or “heightened” level of scrutiny. United States v. Virginia, 518 U.S. 515 (1996).

26 43 Cal. 4th at 841-842.

27 43 Cal. 4th at 852. However, the majority may have hinted at some distrust of the “people’s will,” however, when it stated that “even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions.” 

28 Governor Schwarzenegger (R) appointed Justice Corrigan on December 9, 2005 and she was confirmed on January 4, 2006. She replaced Janice Rogers Brown, who currently is a judge on the United States Court of Appeals for the District of Columbia.

29 43 Cal. 4th at 880.

30 Governor George Deukmejian (R) appointed Justice Baxter to the California Supreme Court in January 1991. From 1983 to 1989 Justice Baxter served as Governor Deukmejian’s Appointment Secretary, the Governor’s principal advisor on all gubernatorial appointments in both the executive and judicial branches.

31 Justice Baxter referred to the majority’s reasoning as “legal jujitsu.”

32 43 Cal. 4th at 875.

33 Some commentators believe that Chief Justice George had long-ago made up his mind. For example, some commentators point to an interview where he said that, with regards to gay marriage, he thought of a “long ago trip he made with his European immigrant parents through the American South. Th ere, the signs warning ‘No Negro’ or ‘No Colored’ left quite an indelible impression on me... I think there are times when doing the right thing means not playing it safe.” Maura Dolan, California Chief Justice Says Same-Sex Marriage Ruling was One of His Toughest, L.A. Times, May 18, 2008, available at http://www.latimes.com/news/local/la-me-gay18-2008may18,0,2131713,print. story. In Re Marriage Cases relies heavily on Perez and Loving.

34 In the future, there will almost certainly be issues surrounding same-gender divorce.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].