California Supreme Court: Gay Marriage Ban Unconstitutional

On Thursday, May 15, 2008, the California Supreme Court struck down California's ban on same-sex marriage and ruled that the state's current Domestic Partnership laws were constitutionally inadequate in an historic 4-3 decision.

The cases under review were brought by the city of San Francisco, two dozen gay and lesbian couples, Equality California and another gay rights group in March 2004 after the court halted San Francisco's monthlong same-sex wedding march that took place at Mayor Gavin Newsom's direction.

The legal issues involved in the California case differed slightly from court cases brought in other states, like Vermont and Massachusetts, because California's statutory Domestic Partnership scheme already provides same-sex couples access to essentially all the rights, privileges, and responsibilities as opposite-sex married couples. In this way, the dispute was less about substantive tangible rights, which same-sex couples already theoretically enjoyed in California, and more about the constitutionality of providing a separate-but-equal statutory scheme for same-sex couples.

As the Court put it, "the question ... is whether ... the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution."

Also of interest is that the California Court (unlike Massachusetts) framed its constitutional equal protection analysis of classifications or discrimination on the basis of sexual orientation as one deserving a greater scrutiny, or "strict" judicial scrutiny, requiring the state to demonstrate the classification to be "necessary" for the purposes of some "compelling state interest".

The court reasoned that, in "Applying this standard to the statutory classification here at issue, 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."

In reaching its decision, the Court drew heavily from the tradition of cases overturning laws barring interracial marriage, (like Perez v. Sharp and Loving v. Virginia) when it proclaimed that "Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right."

The Court decided in its majority opinion, "that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage."

In practical terms, the court issued a Writ of Mandate directing all state and local officials and clerks to take the steps necessary to carry out the ruling of the Court, and to perform their duties in a way that is consistent with the Court's decision. The Court remanded the decision to the Appeals Court for further necessary action consistent with therewith.

The full text of the California Supreme Court decision, In Re: Marriage Cases, can be viewed here in its entirety.

Mildred Loving, Plaintiff in Interracial Marrige case (Loving v. Virginia) Dies at 68

In 1967, Mildred Loving and her husband, Richard, pictured left, successfully challenged Virginia's laws prohibiting marriage between persons of different races. The unanimous landmark Supreme Court decision in Loving v. Virginia (which can be viewed here in its entirety) not only struck down state anti-miscegenation laws like the one in Virginia, but would also become an essential tool in the legal fight for same-sex marriage equality.

In striking down Virginia's law, which made it a criminal offense to marry a person of a different race, the Court drew on both Equal Protection Clause and Due Process Clause principles.

The Equal Protection Argument

The Court found that, "there can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race."

The Court would reason that, "At the very least, the Equal Protection Clause demands that racial classifications, ... if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate."

The justices concluded there were no articulable rationales for the law other than hateful and invidious discrimination on the basis of race. The Court held that without such a permissible (or even rational) state objective, anti-miscegenation laws worked to deprive the plaintiffs' of their Constitutional guarantee of equal protection under the laws.

The Due Process Argument

The Court's Due Process Clause analysis in the Loving Decision is also significant to those who continue to advocate for a continued expansion of marriage equality.

In its Decision, the Court examined the very institution of marriage itself, and described it as one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)." The Court went on to reason that, "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."

The last paragraph of the Decision proclaims that, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

This Constitutional declaration would reverberate and resurface decades later as same-sex couples presented their families and relationships to the Courts for legal recognition and protection.

The Fight for Expanded Marriage Equality

Although numerous important cases would provide fertile soil for the groundbreaking Massachusetts same-sex marriage case of Goodridge v. Dep't of Public Health (Griswold v. Connecticut, Romer v. Evans, Lawrence v. Texas, Baehr v. Lewin, Baker v. State of Vermont, etc.), the powerful and analogous Loving v. Virginia decision would provide a narrative backdrop for the Massachusetts decision.

For example, the Court observed that, "Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

And just as the Supreme Court had done in the Loving case, the Massachusetts SJC waded through the State's proffered rationals for a prohibition on same-sex marriage and found that: "The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.

The Court concluded that "Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution."