: The California Same-Sex Marriage Ruling What it Says, What it Means, and Why It's Right

FindLaw's Writ - Dorf: The California Same-Sex Marriage Ruling What it Says, What it Means, and Why It's Right
Michael C. Dorf

Last week, the California Supreme Court handed down a landmark ruling legalizing same-sex marriage in the nation's most populous state. With the decision in In re Marriage Cases, California becomes only the second state in the country to grant same-sex couples the right to enter into marriages that are in name as well as substance the full equal of opposite-sex couples' marriages.

Like the ruling by the Massachusetts Supreme Judicial Court in the 2003 case of Goodridge v. Dep't of Public Health, last week's California ruling rested in part on the fact that the state already provided same-sex couples the option of entering into state-sanctioned domestic partnerships (sometimes called "civil unions") with the same legal benefits and responsibilities as marriage. Maintaining a separate name for the institution that applied where same-sex couples are involved, both the California and Massachusetts high courts said, was a form of second-class citizenship for the members of such couples..



In this column, I shall lay out the key features of the California Supreme Court ruling and then consider its likely consequences. Finally, I shall defend the ruling against the charge that the Court acted precipitously, moving faster than public opinion (in particular, public opinion in California itself, as measured in a relatively recent ballot initiative), and thus illegitimately.

The California Ruling in a Nutshell, and Why It Is the Last Judicial Word on the Subject

Last week's ruling was based entirely on the California Constitution. Although the actual doctrines the California Supreme Court invoked closely parallel doctrines that the U.S. Supreme Court has announced in interpreting the federal Constitution, the California Court made abundantly clear that its ruling rested solely on state constitutional grounds. Consequently, there will be no occasion for the U.S. Supreme Court to review the ruling, as the U.S. Supreme Court only exercises jurisdiction to decide issues of federal law.

What, then, did the California Supreme Court hold? The majority opinion covers 121 pages, and so I can only briefly summarize it here.

First, the decision holds that the California Constitution confers upon Californians a fundamental right to marry. The state, and various same-sex marriage opponents, had argued that the right to marry had to be understood in its historical context, and that was as a right of opposite-sex couples alone to marry. The Court rejected this argument as legerdemain. In so doing, the Court drew an analogy to its own 1948 decision invalidating a law barring interracial marriage, and quoted New York Chief Judge Judith Kaye's observation (in dissent in New York's same-sex marriage case) for the proposition that ìfundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.î

Second, the California Supreme Court ruled that sexual orientation is a "suspect classification" like race or sex—the sort of government classification that is presumptively invalid because it so often relies on stereotypes about people who, as a group, have long been the victims of discrimination.

Accordingly, the court subjected the California law to "strict scrutiny," a demanding standard of review that required the government to show that restricting marriage to opposite-sex unions was "necessary" to achieve a "compelling interest." Finding that the government interests cited in support of the restriction were barely even legitimate, much less compelling—as they appeared to send a message that the state does not fully approve of same-sex couples' unions—the Court had little difficulty invalidating the law as violating both the California Constitution's right to marriage (derived from express textual protection for, among other things, "privacy"), and its right to equal protection of the law.

Likely Consequences of the Ruling: Minimal Outside California, and Potentially Temporary Inside the State

Last week's ruling is likely to have little impact outside of California—due primarily to the federal Defense of Marriage Act (DOMA). The federal DOMA gives no effect to same-sex marriages for purposes of federal law. Thus, for example, while married same-sex couples in California can file joint state tax returns, they must file separate federal returns.

The federal DOMA also authorizes California's sister states to refuse to recognize same-sex marriages performed in California. To be sure, there is some doubt whether this aspect of the federal DOMA is valid, because Article IV of the federal Constitution requires each state to give "full faith and credit . . . to the public acts, records, and judicial proceedings" of sister states. Congress is only empowered to "prescribe the manner" in which such acts, records and proceedings are proved. Nonetheless, states have long had the ability to deny recognition to some marriages celebrated elsewhere, and most states currently invoke this principle with respect to out-of-state marriages (as explained in a column earlier this year by Joanna Grossman). Thus, even without relying upon the authority DOMA purports to confer (and even if this aspect of DOMA were indeed to be held unconstitutional), states may be able to refuse to recognize out-of-state same-sex marriages.

Moreover, even in California, last week's ruling may prove short-lived, because it can be overturned by the voters of California by a ballot initiative amending the state Constitution, perhaps as early as November.

The California Supreme Court's ruling invalidated a statute that was adopted as a result of a 2000 ballot initiative, Proposition 22. That Proposition provided: "Only marriage between a man and a woman is valid or recognized in California," and it passed with over 61 percent of the vote. The California Supreme Court held that the law enacted by Proposition 22 was inconsistent with the California Constitution. The court was able to do so because ordinary ballot initiatives in California establish only ordinary statutes, which cannot contradict the state Constitution.

However, a special procedure enables a ballot initiative to become part of the California Constitution (and thus immune to further state constitutional challenge). Such an initiative will be somewhat more difficult to get onto the ballot than its predecessor, but not greatly so: In order to place an ordinary ballot initiative before the voters, organizers need signatures from registered voters comprising five percent of the number of ballots cast in the last gubernatorial election; for placing a constitutional amendment on the ballot, the threshold is eight percent.

The backers of a measure to convert Proposition 22 into a constitutional amendment are currently gathering signatures for their proposal, and if they succeed in satisfying the eight- percent threshold, then a simple majority of votes would amend the state constitution. (Alternatively, a two-thirds vote in the California legislature could also place a constitutional amendment proposal on the ballot.) Although Governor Schwarzenegger has stated his opposition to the proposed amendment, there remains a substantial chance that it will pass.

Did the California Supreme Court Act Precipitously?

The ease with which the California Constitution can be amended provides a partial answer to critics—some of whom even support same-sex marriage on policy grounds—who take issue with the California Supreme Court's decision on the ground that courts should not try to bring about social change in advance of popular acceptance.

That criticism may have some force when leveled at the U.S. Supreme Court in its interpretation of the federal Constitution, because the federal Constitution is extraordinarily difficult to amend. Consequently, a Supreme Court decision based on the Justices' perceptions of what rights count as "fundamental" can control legislation throughout the country, even if a substantial majority of the U.S. population disagrees. But if even a simple majority of Californians disagree with the state Supreme Court about the scope of the fundamental right to marry, and if only eight percent of voters are willing to sign a petition, then their understanding will prevail over the California Supreme Court's. In the argot of constitutional law, decisions of U.S. constitutional law are strongly "counter-majoritarian"; decisions of the California Supreme Court are only weakly counter-majoritarian.

That point holds more broadly, as well. In general, state constitutions are substantially easier to amend than the federal Constitution. For that reason, charges of "judicial activism" against state courts ring hollow—or at least, they should.

Furthermore, even if the California Supreme Court's decision were not subject to being overridden by a constitutional ballot initiative, one could hardly blame the California Justices for applying the law as they sincerely saw it. On the two key issues, the Justices simply followed where logic led. To say that the fundamental right to marriage can be denied to same-sex couples simply because it traditionally has been denied to them would, as the Court explained, be flatly inconsistent with its decision in the interracial marriage case. Likewise, gay, lesbian, and bisexual Americans have been, and continue to be, subject to discrimination and outright hatred that warrant treating sexual orientation as a suspect classification, at least if one faithfully applies the principles laid down in prior cases.

What the critics of the California Supreme Court decision are really saying, when they contend that the Court should not have recognized the right of same-sex couples to marry, is that the Justices should have ignored the law for practical reasons: Courts cannot bring about social change if the surrounding society is not prepared for it, the critics say, and may even precipitate backlash.

The criticism may well be right, but it is beside the point. The Justices of the California Supreme Court, like all judges, swore an oath to apply the law. California constitutional law has long rejected the notion that the meaning of terms in the state Constitution—such as "marriage"—is frozen from the moment of enactment. Nor does California constitutional law embrace the view that minority rights turn on the majority's willingness to recognize those rights.

Accordingly, the claim that the Justices of the California Supreme Court confused their own policy preferences with the law is exactly backwards. The critics of the ruling are upset precisely because the Court did follow the law. Should the voters of California respond by overriding the decision by ballot initiative, that will not in any way prove that the Court erred. It will show only that the voters have sullied the noble principle of equality with an exception rooted in prejudice.

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Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.