In re Marriage Cases--A More Complete Discussion

The California Supreme Court just issued its opinion in the In re Marriage Cases (Cal. May 15, 2008) and directed the State of California that the denial of same sex marriage in favor of Domestic Partner Registries (with many of the same benefits of marriage) is unconstitutional.  Id. at *11-12.  The court explains that this conclusion does not conflict with the earlier Lockyer decision, which held that all same sex marriage licenses issued in San Francisco were null and void because the City officials did not have the authority to issue said licenses, because the issue of the constitutionality of same sex marriage was not before the court at that time. Id. at *15.

The court resolved the dispute about section 308.5 of the California Family Code, which was submitted to voters as Proposition 22, first, explaining that the proposition did seek to limit marriage to opposite sex couples in California (as well as with out-of-state marriages).  Id. at *36.

The court points out that it agrees with the plaintiffs in the characterization of the fundamental right at issue.  The right at issue is not one of "same sex marriage", but rather the right to "marriage" (just as the right to marry a person of a different race was characterized as invoking the right to "marriage" and not "interracial marriage").  Id. at *52.  Then the court addresses what can be considered as encompassed by the "right to marriage" in terms of the substantive benefits and incidents of marriage.  Id. at *54.  The court recognizes that marriage is inextricably linked to the right to establish a family "with the person of one's choice."  Id. at *57.  The court mentions many other important aspects of marriage, including:  the right to have your relationship acknowledged publicly, the security provided for your children, the joining together of two families, etc.  The court specifies that it is the "opportunity" to marry that counts, not whether a particular couple chooses to marry or not (as many opposite sex couples live together without getting married as well).  Id. at *62.

The court recognizes that the right to marry also includes the negative and positive rights associated with familial privacy: the right to have the State support the relationship and permit the couple to have "public recognition of the couple's relationship as a family" and all of the rights and State benefits that accrue therefrom.  Id. at *64-65.

Therefore, the court concludes, due to the broad and important nature of the right to marry, the State cannot limit the right to marry on the basis of sexual orientation.  Id. at *66.

The court refuses to agree with the plaintiff's contention that the statute categorizes couples on the basis of sex or gender.  Instead, the court agrees with the often-cited argument that the statute applies to both sexes equally (a man cannot marry another man, and a woman cannot marry another woman).  Id. at *85.

Instead, the court finds that sexual orientation is a suspect classification under the California Constitution and, as such, the statute must satisfy the rigorous strict scrutiny test to survive constitutional infirmity.  The court notes that the main contention in this area is "immutability."  Id. at 97.  However, the court notes that religion is a protected category under Equal Protection, even though a person can change his or her religion.  Why?  Because it would not be easy to do so.  A person's religion, like his or her sexual orientation, is a very personal and important self-defining characteristic.  Id. at *97-98 (the court also addresses the rest of the elements necessary to determine whether a particular class is a suspect class and finds that sexual orientation classifications meet every test).

Unsurprisingly, once the court determined that strict scrutiny applies to the marriage classification, it was easy to discredit the State's offered interests as not reaching the appropriate constitutional "compelling" level. Id. at 118.

The decision is quite long (118 pages) and includes both concurring opinion as well as a concurring and dissenting opinion.  Thus, this brief description of the major analysis of the court is by definition incomplete.  However, the decision is a very interesting and thorough analysis of the many issues involved in the cases and I highly recommend you visit the link to read it yourself as well:  http://www.courtinfo.ca.gov/courts/supreme/highprofile/.