Tuesday, May 27, 2008

Why the California Supreme Court decision granting marriage can withstand legal scrutiny

Gay Opinion Blog: Why the California Supreme Court decision granting marriage can withstand legal scrutiny

May 27, 2008
Chris Johnson

This article by HRC Legal Director Lara Schwartz on the California Supreme Court marriage decision was originally published by Legal Times (Click here to download the PDF ):

Last week the California Supreme Court rolled in a 121-page blackboard and taught Americans a lesson in bread-and-butter constitutional principles.

The court ruled that the state could not constitutionally maintain a legal distinction between gay and lesbian couples and their heterosexual counterparts. Noting that marriage has long been considered a fundamental right, the court restated the bedrock constitutional principle that in order to deny access to a fundamental right, not only must the state have a compelling interest but the denial must be necessary to achieve that interest. The court also concluded that crafting separate but purportedly equal legal statuses for families headed by gay and straight couples violates the state’s equal protection clause, in part because marriage alone gives the utmost dignity and respect to a family.

The state cannot deny a fundamental right absent a compelling interest. The state cannot create distinctions in legal status among classifications of people absent a compelling interest.

These same principles have laid the foundation for hundreds of state and federal cases in the past several decades. By the conclusion of Con­sti­tu­tional Law I, every law student is familiar with them.

Yet critics of the May 15 decision are saying that it is a radical departure from prior law. It is not. It is simply a departure from prior resistance to acknowledging that gay people are equal to everyone else.

If gay people — and the families that thousands in California have created, nurtured, and loved — were not equal to their heterosexual neighbors, then a constitutional mandate of equal protection and fundamental rights could be considered a departure from the settled principles the court claimed to espouse. But once you understand — as the Amer­i­can Psychological Association, the American Psychiatric Association, and every mainstream social welfare, mental health, and children’s welfare group have done — that gay and lesbian couples love each other as much, live as well, parent as well, and support each other as responsibly as anyone else, In re Marriage Cases becomes the easiest Constitutional Law exam answer ever: Apply strict scrutiny, and place all citizens on equal footing with one another.


The critics of the California decision are therefore wrong when they argue that the court read a right to “gay marriage” into the state constitution or redefined what marriage is. The court did not create a new right, but rather recognized that a previously excluded group of people possessed an already existing right. Coming to this conclusion simply required the justices to conclude that there is nothing about gay people that disqualifies them from the rights guaranteed to all citizens of California by the state constitution.

Critics have also accused the court of usurping the power of the legislature and the people to determine whether gay and lesbian couples should be considered equal under state marriage laws. This argument is both politically inaccurate and legally incorrect.

Before the court issued its decision last week, the California Legislature had twice passed a bill legalizing marriage for same-sex couples. Citing the previous ballot initiative and the pending court challenge to the initiative, Gov. Arnold Schwarzenegger twice refused to sign the bill, saying that either the voters or the courts would decide the issue. In other words, the legislative branch attempted to act, and the executive deferred instead to the judiciary.

The political argument isn’t passing muster in Massachusetts either. After the Massachusetts Supreme Judicial Court declared that the state could not bar same-sex marriage in Goodridge v. Department of Public Health (2003), the state legislature failed to pass an amendment reversing the decision. In the next election cycle, the voters overwhelmingly re-elected legislators who voted against that amendment and replaced several anti-marriage-equality members with supporters of marriage equality. Following the will of the electorate, the state legislature has reinforced the court’s ruling.

Yet some still find it convenient to assail judicial action in favor of same-sex marriage as somehow unauthorized, because that garners suspicion among laypeople.

The charge that the California court has usurped political power is also flawed as a matter of law. When the court acknowledges — as the facts demand —that gay and lesbian couples are equal to any others, it is both nonsensical and unconstitutional to demand that those couples pull together a political majority before they will actually be treated equally. Nowhere in the California Constitution can you find a gay exception to fundamental rights. To write such an exception into the document is results-oriented and, to use the phrase favored by critics of the decision, “activist.”


If In re Marriage Cases represents an embrace of, rather than a departure from, well-settled constitutional principles, then why does it still feel so new? And why, after years of outright losses since Goodridge and halfway decisions in which courts fabricated gay exceptions to the nonmajoritarian principle of equal rights in order to “punt” to legislatures, did the California Supreme Court rule as it did?

No matter how pure and enduring the constitutional principles that direct its decisions, no court operates in a vacuum. As Justice Felix Frankfurter wrote, courts “should not be ignorant as judges of what we know as men.” The justices in California know gay people and their families. And knowing them, the court could not possibly conclude that excluding them from equal treatment under law is necessary to further any state interest.

Four years after Massachusetts granted the first marriage licenses to gay and lesbian couples in the United States, we know that doing so did not “rewrite” the marriage laws, change the character of marriage, or affect in any way the state’s interest in promoting marriage as a stable institution for nurturing children and providing social and financial stability.

For opponents of gay and lesbian equality, it is uncomfortable — and strategically unwise — to concede that the case did not turn on a novel or inappropriate interpretation of the law, but rather a recognition of facts that conflict with their own views and values. These people believe that gay people must audition before the majority to secure their human rights because their actions or very nature render them unfit to claim these rights as people.

That is a political decision. Whether gay and lesbian families are guaranteed equal dignity under law is not.

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