Ongoing: Throughout the day, we'll be pulling nuggets of significance and silliness out of the monster 172-page gay marriage ruling and posting them here.
THE MONEY QUOTE
Page 11:
... we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — 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.
SEPARATE IS NOT EQUAL
Almost directly following the above quote, the justices skewer the linguistic wonkery of preserving the word "marriage" for straight couples and letting homosexuals drink from a separate water fountain labeled "civil unions," or something:
... retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.
For more, from the historic designation of gays as a "suspect class" to the politically correct niceties of defining our terms, follow the jump:
GETTING OUR TERMS STRAIGHT. No, wait ... we mean ... um...
Making sure everybody's on the same page and nobody's feelings are
hurt, the Court gives us footnote five, on page 7 of the ruling:
For convenience and economy of language, in this opinion we shall use the term “gay,” with reference to an individual, to relate either to a lesbian or to a gay man, and the term “gay couple” to refer to a couple consisting of either two women or two men.
SUSPECT CLASS BENCHMARK
The
ruling identifies gays and lesbians (hereafter referred to as "gay
couples") as a "suspect class," which it has never done before. This
opens up a whole world of discrimination claims. From the top of page
10:
... we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
As the strict scrutiny discussion continues, (pages 95-100) it becomes the real core of Chief Justice Ronald George’s majority opinion. George finds that whether gays and lesbians are a suspect class is an issue of first impression in California. Most other states have said no.
In California, for suspect class you have to show 1) immutable characteristic, 2) no bearing on ability to contribute to society and 3) associated with a stigma of second-class citizenship. He says gays easily meet 2 and 3, but acknowledges 1 is “controversial.” He resolves the controversy by saying 1 is actually not a requirement, because a person’s religion is not immutable and yet religious groups are suspect classes for purposes of discrimination analysis.
He notes that Attorney General Jerry Brown wants to impose a fourth requirement of political powerlessness but rejects that (saying that if that were the case, sex discrimination or race discrimination would now be legal).
IS CALLING IT AN "EVOLUTION" JUST MEAN?
And in conclusion (on pages 115-116), the majority observes that force of habit turns out to be not a defense for
discrimination:
Although the understanding of marriage as limited to a union of a man and a woman is undeniably the predominant one, if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage,. (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment.
As the United States Supreme Court observed in its decision in Lawrence v. Texas, supra, 539 U.S. 558, 579, the expansive and protective provisions of our constitutions, such as the due process clause, were drafted with the knowledge that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” For this reason, the interest in retaining a tradition that excludes an historically disfavored minority group from a status that is extended to all others — even when the tradition is long-standing and widely shared — does not necessarily represent a compelling state interest for purposes of equal protection analysis.
A KNOCK ON THE CHIN?
Justice Ming Chin did not join the majority opinion. Interesting, then, that George cites (page 58) a Chin opinion to bolster the ruling. After noting the widely valued aspects of marriage in providing social stability and proper environments for childrearing, George quotes a handful of precedents, ending with a line from Chin:
It is these features that the California authorities have in mind in describing marriage as the “basic unit” or “building block” of society. (See, e.g., DeBurgh v. DeBurgh, [“[t]he family is the basic unit of our society”]; Baker v. Baker [“[t]he public is interested in the marriage relation and the maintenance of its integrity, as it is the foundation of the social system”]; Elden v. Sheldon, (dis. opn. of Broussard, J.) [referring to “the well-accepted maxim that marriage serves as the building block of society”]; Dawn D. v. Superior Court (1998) (dis. opn. of Chin, J.) [“‘the family provides the foundation upon which our society is built and through which its most cherished values are best transmitted’”].)
(Emphasis ours, but it'd be funnier if it weren't. And we pulled the citations for easy readability) So whaddaya think? Is that a little swipe?
THAT'S GONNA LEAVE A MARK ...
This had to sting: George notes (beginning on P. 113) that former U.S. Chief Justice Warren Burger once struck down Berkeley’s rent control ordinance, writing, “it is irrelevant that the voters rather than a legislative body enacted” the law. He hits the trifecta, citing a right-wing warrior (Burger) on a hot-button issue for conservatives (rent control) in a case from Berkeley to make his point.
UPDATE YOUR LAW DICTIONARIES ACCORDINGLY
Legal Pad imagines that the majority must’ve agonized over this as they crafted today’s opinion — what can now be cited as the California case law definition of “the constitutional right to marry.” From Page 6 (italics are the court’s):
We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.
These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.
HEY, WE’RE NOT SAYING YOU SHOULD GET MARRIED
No judgment. Goldie Hawn and Kurt Russell can rest easy. From page 62:
There are, of course, many persons and couples who choose not to enter into such a relationship and who prefer to live their lives without the formal, officially recognized and sanctioned, long-term legal commitment to another person signified by marriage or an equivalent relationship. Nonetheless, our cases recognize that the opportunity to establish an officially recognized family with a loved one and to obtain the substantial benefits such a relationship may offer is of the deepest and utmost importance to any individual and couple who wish to make such a choice.
THE DUD ARGUMENT
We don’t think the pro-gay marriage types are likely to be crying at home over this, given the overall outcome. But it is interesting to note which of their arguments fell flat with the majority: Did the state’s ban on same-sex marriage discriminate on the basis of sex or gender? Nope. From Page 87 (italics the court’s):
These cases recognize that, in realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual’s sexual orientation.
WHAT’S YOUR SIGN?
In contrast to the dud above, an argument from the pro-gay marriage folks that hit home with the majority: When someone asks you if you’re “married or single,” it’s not just awkward — if you’re someone’s domestic partner, it could innocently out you in a crowd. From pages 105-106:
An individual who is a domestic partner and who accurately responds to the question by disclosing that status will (as a realistic matter) be disclosing his or her homosexual orientation, even if he or she would rather not do so under the circumstances and even if that information is totally irrelevant in the setting in question. … The existence of two separate family designations … may expose gay individuals to detrimental treatment by those who continue to harbor prejudices that have been rejected by California society at large.
— Cal Law Editors
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