Nuggets from the Concurrences & Dissents

Ongoing: The Supreme Court's 172 pages of rumination on marriage rights include the four-justice majority's opinion led by Chief Justice Ronald George, plus a concurrence by Justice Joyce Kennard, and dissents by justices Carol Corrigan and Marvin Baxter (the latter joined by Ming Chin).

PUT YOURSELF IN THE JUSTICES’ SHOES
The crux of Justice Marvin Baxter’s dissent accuses the majority of overstepping the judiciary’s role. He acknowledges that the courts have to provide a check on “majoritarian” abuse, but at the same time emphasizes the importance of letting The People set public policy. From Page 7 of his dissent:

History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse.  Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights.  Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise — the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves.  Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution.

Seems to us this is where the rubber hits the road on any case or movement in which a minority population is claiming a violation of its rights (see Rosa Parks, Brown v. Board of Education, women’s suffrage … ).

The justices’ job isn’t an easy one, and we aren’t making light of the very real dilemma they were weighing. But as The People, how do you think majority rule and minority protections should properly be balanced?

THEY'D DO IT FOR THE CAKE?
On page 20 of his dissent, or 147 of the whole magilla, Baxter points out that gay people have just as much right to marry someone of the opposite sex as anyone else, so what's the worry?

I also disagree with the majority’s premise that, by assigning different labels to same-sex and opposite-sex legal unions, the state discriminates directly on the basis of sexual orientation. The marriage statutes are facially neutral on that subject. They allow all persons, whether homosexual or heterosexual, to enter into the relationship called marriage, and they do not, by their terms, prohibit any two persons from marrying each other on the ground that one or both of the partners is gay.

The justice starts his disagreement with the application of strict scrutiny on page 21 (149), for those struck by that key aspect of the ruling.  For more, follow the jump.

RATIONALIZE THIS
Baxter (and by extension, Chin) disagree with the majority on a lot of points. But at last, on page 18 of Baxter’s dissent (p. 145 of the package), he gets to the heart of their schism: The majority adopts strict scrutiny, and Baxter and Chin go for the rational-basis test.

From this conclusion, it follows, for substantive due process purposes, that the marriage statutes are valid unless unreasonable or arbitrary (see, e.g., Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 771), and are not subject to the strict scrutiny that applies when a statute infringes a fundamental right or interest. As I discuss below, California’s preservation of the traditional definition of marriage is entirely reasonable. Accordingly, I would reject plaintiffs’ due process claim.

At the trial court level, San Francisco’s Judge Richard Kramer had found for the pro-gay-marriage faction under both tests. Turns out, many lawyers rightly predicted that a key to the case would ultimately be whether the high court chose to go with strict scrutiny.

TOO MUCH SUCCESS?
Baxter says (p.24/151) you can't treat gays as a special class that's subject to abuse because they've been too good at standing up for themselves.

In California, the political emergence of the gay and lesbian community is particularly apparent. In this state, the progress achieved through democratic means — progress described in detail by the majority — demonstrates that, despite undeniable past injustice and discrimination, this group now “ ‘is obviously able to wield political power in defense of its interests.’ ” (Maj. opn., ante, at p. 98, quoting the Attorney General’s brief.).

It's true that mistreated groups often gain more acceptance or power (Irish Catholics, for example). Question is, when you've come a long way, baby, how do you know when you've come far enough? Baxter takes a shot at this, at least conceptually, a page later:

I do not suggest that once a group is properly found in need of extraordinary protection, it should later be “declassified” when circumstances change. I only propose that, when, as here, the issue is before us as a matter of first impression, we cannot ignore current reality.  In such a case, we should consider whether, despite a history of discrimination, a particular group remains so unpopular, disfavored, and susceptible to majoritarian abuse that suspect-class status is necessary to safeguard its rights.  I would not draw that conclusion here.

Again with the "majoritarian" ...

CIVIL UNIONS ALL AROUND!
But wait, there's more from the Baxter dissent, Pages 8-9 (135-136), note the parenthetical:

To the extent this means same-sex couples have a fundamental right to enter legally recognized family unions called “marriage” (or, as the majority unrealistically suggests, by another name common to both same-sex and opposite-sex unions), I cannot agree.

Actually, that would’ve been a creative solution. Though it would probably have started riots in the streets and a whole lotta paperwork, so maybe creative isn’t necessarily smart. Just think of the name-that-union radio contests we could’ve had, though. California could have had mawwiages …

(Note: Actually, the majority raised that possibility, but on page 120 chose to extend marriage to everyone to remedy the problem:

In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.)

CORRIGAN: SAME TASTE, LESS FILLING?
So, Justice Marvin Baxter’s dissent doesn’t quite say “Don’t allow gay marriages, ever.” But he clearly prefers that The People decide if and when Those People can marry, and he seems compassionate toward people who feel the man-woman definition is important. Corrigan is likewise in the minority today, but she makes it clear from the get-go that her personal sympathies fall with the pro-gay-marriage advocates. In paragraph one on Page 1 of her dissent (p.154):

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages.  But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote.

By the end, she’s sounding more like Baxter. From Pages 7-8:

Democracy is never more tested than when its citizens honestly disagree, based on deeply held beliefs.  In such circumstances, the legislative process should be given leeway to work out the differences.  It is inappropriate for the judiciary to interrupt that process and impose the views of its individual members, while the opinions of the people are still evolving. … If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.

BUT SHE WON’T DISS DOMESTIC PARTNERSHIPS
Despite the notes of sympathy above, Corrigan didn’t sign on to the view — aggressively argued by the pro-gay marriage faction — that domestic partnerships are a substandard union compared to marriage. From Pages 3 and 4 of her dissent (p. 156-157):

Domestic partnerships and marriages have the same legal standing, granting to both heterosexual and homosexual couples a societal recognition of their lifelong commitment.  This parity does not violate the constitution, it is in keeping with it. … The people are entitled to preserve this traditional understanding in the terminology of the law, recognizing that same-sex and opposite-sex unions are different.  What they are not entitled to do is treat them differently under the law.

YOU SAY CIVIL RIGHTS? SHE SAYS …
Corrigan takes on the seemingly obvious civil rights analogies. Still from Page 4 (p. 157):

The distinction between substance and nomenclature makes this case different from other civil rights cases.  The definition of the rights to education, to vote, to pursue an office or occupation, and the other celebrated civil rights vindicated by the courts, were not altered by extending them to all races and both genders.  The institution of marriage was not fundamentally changed by removing the racial restrictions that formerly encumbered it.  Plaintiffs, however, seek to change the definition of the marital relationship, as it has consistently been understood, into something quite new.  They could certainly accomplish such a redefinition through the initiative process.  As a voter, I might agree.  But that change is for the people to adopt, not for judges to dictate.

WHICH CAME FIRST, THE CHICKEN OR THE EGG?
That one's easy: The egg if you believe in evolution, the chicken if you don't. Here's a tougher one, though: the right to marriage or the definition of it?

Legal Pad would observe that whether allowing gay couples to marry “changes” the definition of marriage or simply “extends” it to more people is yet another key disagreement between the parties, and the justices, in this case. Take Perez v. Sharp, the 1948 California Supreme Court case striking down a ban on interracial marriage — the majority finds it at least somewhat analogous to the gay marriage litigation, while the dissenters see it as a completely different animal.

Compare Page 81 of the chief justice’s majority opinion …

As observed by the City at oral argument, this court’s conclusion in Perez, supra, 32 Cal.2d 711, that the statutory provision barring interracial marriage was unconstitutional, undoubtedly would have been the same even if alternative nomenclature, such as “transracial union,” had been made available to interracial couples.

… to Pages 3 and 4 (156-157) of Corrigan’s dissent:

The majority places great reliance on the Perez court’s statement that “the right to marry is the right to join in marriage with the person of one’s choice.”  (Id. at p. 715.)  However, Perez and the many other cases establishing the fundamental right to marry were all based on the common understanding of marriage as the union of a man and a woman.  …  Because those cases involved the traditional definition of marriage, they do not support the majority’s analysis.  The question here is whether the meaning of the term as it was used in those cases must be changed.

… and to Page 16 of the Baxter/Chin dissent:

Certainly Perez v. Sharp (1948) 32 Cal.2d 711 does not support the majority’s expansive view.  There we struck down racial restrictions on the right of a man and a woman to marry.  But nothing in Perez suggests an intent to alter the definition of marriage as a union of opposite-sex partners. 

—  Cal Law Editors