October 6, 2006
Case Law Development: California Upholds Constitutionality of Ban on Gay Marriage
The long-awaited decision of the California Court of Appeals on the constitutionality of gay marriage followed much of the same pattern as the New York and Washington state decisions (see Family Law Prof Posts of July 11 and July 25)- holding that the ban on gay marriage does not violate due process or equal protection and that the decision to make marriage available to same-sex couples is for the legislature. Of all the opinions issued thus far on the subject, I would be most inclined to assign this case for students.
First, the opinion provides students with a fine overview of how marriage legislation has evolved, including the development of domestic partner legislation. Second, the opinion fairly thoroughly explores all the major arguments and analyses that have been raised in the same-sex marriage constitutional challenges. The majority opinion examines the reasons for a rational basis standard of review on due process and equal protection challenges and the government interests advanced by the definition of marriage. The dissent advances a vigorous attack on the majorities reasoning and presents an entirely different framework of constitutional interpretation. Finally, the opinions provide a fascinating commentary by the judges on the role of courts in constitutional interpretation.
Here is a brief outline of the majority opinion by Justice McGuiness:
I. Justiciability Issues
(The court concludes that two citizen groups lack standing as they seek declaratory relief regarding enforcement of the marriage laws – relief they had already obtained in separate mandamus actions.)
II. Relevant Statutory Provisions
A. The Marriage Statutes
The court discusses both the marriage act (which included language of gender first in 1977) and the more recent Proposition 22.
B. The Domestic Partner Act
The court reviews a variety of legislation extending protection to gays and lesbians and explores the scope and limitations of the domestic partner act. Finally the court recites the recent legislative attempts to legalize same-sex marriage in the state.
III. Respondents' Constitutional Claims
A. No Fundamental Right to Marriage Between Same-sex Partners Has Been Recognized.
The court explores how to define the right at stake, concludes that the historical understanding of marriage is critical to the analysis, and finds that the question of re-defining marriage is one for the legislature not the courts.
B. The Marriage Laws Do Not Discriminate Based on Gender
The court concludes that discrimination based on gender means singling out one sex for discriminatory treatment. Since same-sex marriage treats men and women equally, it does not violate equal protection. The court rejects the analogy to the miscegenation cases, on the basis that the 14th Amendment did require that all laws incorporating racial classification are subject to strict scrutiny. Here, the court concludes “No evidence indicates California's opposite-sex definition of marriage was intended to discriminate against males or females…”
C. Disparate Impact on Gays and Lesbians Does Not Trigger Strict Scrutiny
The court concluded that there was no precedent for treating sexual orientation as a suspect classification for purposes of equal protection analysis, including Lawrence v. Texas. In particular, regarding the analysis of whether sexual orientation constitutes an immutable trait, the court noted that “Lacking guidance from our Supreme Court or decisions from our sister Courts of Appeal, and lacking even a finding from the trial court on the issue, we decline to forge new ground in this case by declaring sexual orientation to be a suspect classification for purposes of equal protection analysis.”
D. The Marriage Laws Do Not Infringe Other Asserted Constitutional Rights.
1. Right of Privacy/Intimate Association
The court analyzed the prohibition on same-sex marriage under the California constitutional protection of freedom of intimate association. The court concluded that banning marriage did not infringe on that right because, marriage is “valued not just for the private commitment it fosters between the individuals who marry, but also for its public role in organizing fundamental aspects of our society.”
2. Right of Free Expression
“Although there are expressive aspects to it, entering a marriage is obviously something much more than a communicative act. If the state has legitimate reasons for limiting marriage to opposite-sex couples, then the unavailability for same-sex couples of this one form of expressing commitment-when all other expressions remain available-does not rise to the level of a constitutional violation.”
IV. The Marriage Laws Withstand Rational Basis Review
A. State's Interest in Preserving the Traditional Definition of Marriage Is Legitimate
The court examined the government interest in preserving “traditional” marriage, analyzing this interest in light of the other protections provided to same-sex couples under California law. The court noted that “California provides one of the most comprehensive systems of rights and benefits for same-sex couples in the country.” Since the states interest in supporting stable family relationships is protected by both marriage law and domestic partner legislation, the court concluded that “it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union, while at the same time providing equal rights and benefits to same-sex partners through a comprehensive domestic partnership system. The state may legitimately support these parallel institutions while also acknowledging their differences.” Dismissing the analogies to “separate but equal” arguments supporting segregation, the court stated, “We are not dealing with a suspect classification such as race. Therefore, under the correct legal standard (rational basis review), we must uphold the opposite-sex requirement for marriage if it is supported by any plausible reason.” Interestingly, the court did not rely on the “responsible procreation” rationale other courts have advanced, as the Attorney General in this case had expressly disavowed that position, suggesting that any argument that implied that same-sex couples were inferior as parents to heterosexual couples would be against the public policy of the state.
B. State's Interest in Carrying Out the Will of Its Citizens Is Legitimate
“Majoritarian whims or prejudices will never be sufficient to sustain a law that deprives individuals of a fundamental right or discriminates against a suspect class…. [However] We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem…. Respect for the considered judgment of the Legislature and the voters is especially warranted where the issue is so controversial and divisive as is the question whether gays and lesbians should be permitted to marry their same-sex partners.
Concurring Opinion Justice Parrilli writes to “address what are more philosophical questions presented by the challenging legal issues before us.” His opinion comments on the nature of the debate and the respective roles of the legislature, the courts and religion in resolving this issue.
Dissenting Opinion Justice Kline dissents, providing a lengthy and impassioned argument that the court must frame the issue as a right to marry, relying on cases such as Bower v. Hardwick and Loving v. Virginia to demonstrate that the same-sex marriage ban is an invidious form of discrimination against a suspect class. “Though not its purpose, the inescapable effect of the analysis the majority adopts is to diminish the humanity of the lesbians and gay men whose rights are defeated.”
In re Marriage Cases, 2006 Cal. App. LEXIS 1542 (October 5, 2006)
Opinion on the web (last visited October 6, 2006 bgf)
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