Borrowed Thoughts on the California Marriage Decision

Someday, years from now, when I have made my fortune as a big fancy lawyer, when my children have grown up to become astronauts and Supreme Court Justices, and when my life has devolved into unfettered leisure, I will be able to spend half a day reading a landmark 170+ page judicial decision and compose an insightful and intelligent blog post about it synthesizing the most significant aspects of the ruling before, or at least contemporaneously with, other legal commentaters doing the same thing. For now, alas, I have no such wealth of time, and so I must succumb to the fact that other people have beaten me to what I wanted to say about yesterday's big important ruling by the California Supreme Court.

So, I'll point you to two faster movers who are probably smarter than I am anyway. First, Kenji Yoshino, who my co-clerk often gushed about last year, summed up the majority decision thusly in Slate:

Writing for the California high court, 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). 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.

Picking up on that latter point (which is what I would have written about if I had a little more git-up in me), Marty Lederman has a more detailed discussion, also at Slate.

Essentially, the Court's narrow holding regarding the use of the word "marriage" is great and all, but the decision goes much farther than that. The Court's decision to treat descrimination on the basis of sexual orientation under a strict scrutiny standard is a much greater step in the advancement of equal rights for gays and lesbians, and it's a holding that can be applied to any California law discriminating on that basis, not just marriage laws.

This also may mean that in the (hopefully) unlikely event that an anti-gay marriage constitutional amendment squeaks through this November, that part of the Court's decision will remain untouched. In other words, the effect of the amendment combined with the Supreme Court decision will mean that government discrimination based on sexual orientation will be subject to strict scrutiny except in the narrow instance of marriage.

Of course, this isn't a given. The amendment could be structured to wipe out the entire decision, though that may be harder to sell to the voters, and depending on how ambitious it is may run into constitutional problems of the federal variety. To completely eliminate the strict scrutiny review adopted in the Court's decision, an amendment would have to not only explicitly invalidate the entire decision but also pro-actively prohibit the Court from re-adopting the standard in a future case. If the proponents of the amendment were super clever they would use the amendment to force the California Supreme Court to adopt the U.S. Supreme Court's weird standard from Romer v. Evans, a case in which the Court applied what commentators have called "rational basis review with teeh" to state discrimination against gays and lesbians. This would (1) eliminate same-sex marriage in California, (2) tie the hands of the California Supreme Court in dealing with all discrimination implicating sexual orientation, and (3) likely insulate the amendment itself from attacks under the U.S. Constitution, at least until the U.S. Supreme Court gets with it and adopts its own strict scrutiny standard for sexual orientation-based discrimination.

I don't presume to predict what will happen regarding the amendment, and nobody's asking me for my input. I'm just practicing for the twilight years.