Sunday, May 25, 2008

Gay Marriage in CA...

Even since the California Supreme Court decided to allow gay marriage in the State of California I wanted to write something analyzing the opinion. It must be noted that the opinion is very long (172 pages, available here) and thus I for the sake of brevity I will only be writing about a few limited points. It is my hope that this entry will be understood even by those who do not have a legal background so I will begin with a few basics needed to understand the opinion.


First some basics. The basis for any legal system is the constitution of that jurisdiction. Any laws passed by the legislature draws its power from the constitution. Because of this, laws may be challenged as unconstitutional even if properly passed by the legislature. In other words, somebody can challenge a law by claiming that the law is invalid because it is contrary to the legal documents that allows laws to be be passed in the first place.

Courts have setup a general framework in deciding the constitutionality of laws, this is called the "standard of review." The standard of review will decide how closely the law will be scrutinized. This approach assumes that certain rights under a constitution are more important than others (or in more danger to be violated), so a law dealing these rights must be looked at more carefully. The government will be allowed more power to regulate less important rights. A court will begin its constitutional analysis by placing a law into one of three categories: strict, intermediary, or rational.

For each category the court ask which level of state interest is required, and the how much the law is related to this state interest. The more important the right, the more important the reason the state must have in regulating that right. Also, the more important the right, the more a court will require the law to relate to its stated goal (this is call a "fit"). Rational basis is the lowest category of scrutiny, it only requires a "legitimate" state interest, and that the law in question be rationally related to this interest. This is easy to show and most laws will pass the rational basis test. Intermediate scrutiny requires a "substantial" state interest, and that the law be substantially related to this interest. Last, strict scrutiny requires a "compelling" state interest, and that the law be "necessary" to serve that interest. Most laws fail strict scrutiny.

As a lawyer who wants to invalidate a law, you will argue that strict scrutiny applies. This will place a higher burden on the state, which it will likely not meet. Courts have usually applied strict scrutiny to laws dealing with race, and fundamental rights like voting. Intermediate is rarely used, but has been applied to cases dealing gender. Most widely used, (to the benefit of the state) courts apply rational basis (for example laws regulating commerce).

OK all done with basics.

---California Decision ---

In the California case (In re Marriage Cases, S147999 (2008) 08 C.D.O.S. 5820), dealt with the constitutionality of the California Defense of Marriage Act, which banned same-sex marriage. The court was careful in framing the question about gay marriage. It refused to look at the right to marriage alone, but rather in the context of the liberal California domestic partnership laws which give same-sex couple virtually all of the same rights and responsibilities as married couples, without the label of "marriage." Here is what the court said:

[T]he legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas theunion of a same-sex couple is officially designated a “domestic partnership.”

This seems to focus the question away from a the right to "gay marriage," to the label of "marriage" being withheld from same-sex couples. The court found issues dealing with equal protection and the fundamental right to marriage.

First, it decided that strict scrutiny applies because homosexuals are a "suspect class" (a group of people that tend to be discriminated against and and therefore need additional protection) and that the law impinged on the "fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple."

The law failed strict scrutiny because the "interest in retaining the traditional and well-established definition of marriage cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest." Therefore, the law was invalid.

The court also rejected that argument that no fundamental rights are being violated since same-sex couples are not being really discriminated because they are allowed to form domestic partnerships which are functionally marriages with virtually the same rights and privileges, but only lack the label. Nonetheless the court found the distinction as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution because if fails to secure "the same dignity, respect, and stature as that accorded to all other officially recognized family relationships."

---Limitations of the Decision---

While this is a groundbreaking decision in California, its scope might be limited by several factors.

The court does not seem to say that California must allow "gay marriage," but rather that they can't call it something else in light of the legislative scheme which gives same-sex domestic partnerships almost all of the same rights. The opinion seems to imply that a different court, in a different state which does not have a history of progressive legislation that gives same-sex couples rights similar to marriage might come to different decision. I can also see people trying attack the laws which give same-sex couples similar right to marriage. The decision would allow this, specially if the amendment below passes.

The ruling was 4-3 in favor of striking down the law. A single change in the court could reverse this decision. Even some of the four in the majority had reservations.

The ruling might become moot in light of a proposed amendment to the California Constitution which would prohibit same sex marriage (Limit on Marriage Act). In fact, the court has been asked to stay the decision until this amendment is voted upon.

Last, the federal Defense of Marriage Act (DOMA) allows other states to refuse to recognize same-sex marriages from other states. This means that a gay marriage in California might not be valid elsewhere.


Personally, I am a strong supporter of gay marriage. I do not believe that my heterosexual marriage is at all threaten by having same-sex couples share the label. Moral arguments have no place in this discussion since marriage is just a civil contract as far as government is concerned. I personally believe that marriage is a holy union under God, an acceptance of another under the eyes of God. Homosexuality might be a sin, who knows, but I have no right to pass judgment on my fellow man. Or turn this judgment into a harmful restriction in the secular world. Each church should be free discriminate against same-sex marriage, but not the government. Let God deal with each soul, and government deal with each person.