New York Law School professor Art Leonard, who edits the monthly Lesbian/Gay Law Notes, has written a fascinating look at the little-discussed parts of the California marriage decision. Some highlights:
When/if the court’s decision goes into effect, California will be the third largest polity in the world that has embraced marriage equality by allowing same-sex couples to marry. The largest is South Africa, with a population of almost 48 million, then Spain with about 45 million, then California, with about 38 million, followed by Canada, 33 million…
California freely allows out-of-state residents to marry there, regardless of what their home states will do in the way of marriage recognition, so we are likely to see plenty of action as out-of-staters flock to California to marry, then go home and try to assert their rights. Additionally, of course, with a population almost six times as large as Massachusetts and an enormous LGBT community, California will generate an enormous number of married same-sex spouses, some of whom will travel to and through other states, relocate for employment or other reasons, and find themselves embroiled in situations calling for marriage recognition.
[T]he California Supreme Court’s holding that sexual orientation is a suspect classification is really huge, far beyond the marriage issue, because it makes any state policy or practice that discriminates based on sexual orientation presumptively unconstitutional. At one fell swoop, it says that gay public employees in California have the same level of constitutional protection from workplace discrimination on the basis of their sexual orientation that racial minority employees have from race discrimination, for example. (To judge by the cases I see popping up on my regular westlaw searches, this could make a big difference, for example, in pro se litigation by state prisoners challenging homophobic treatment by guards and prison administrators, and could also be used to mount challenges against recalcitrant public school administrators. . .)
There’s more that con law nerds like me will enjoy.
I understand there will be a vote of some sort in November in California. How will that affect this ruling?
It would overturn it, except for the part about the suspect classification.
I still haven’t read the whole thing — not even close, that’s one of my projects for today — but I printed up the PDF as soon as it came over the wire. When I got to the part about suspect classification and strict scrutiny I was like, “Wait a tick…did they really say that? and…if I’m not mistaken, no one’s accepted that claim before. Yes!”
It’s also a profoundly important ruling because it doesn’t focus on whether same-sex marriage is permissible under the state constitution, but rather on why anything other than marriage (i.e., domestic partnerships) is unconstitutional. I was on a Lambda Legal conference call yesterday for members, and they indicated their hope that this opinion will be incredibly persuasive to courts currently considering similar cases in Connecticut and Iowa. Additionally, Gov. Corzine has essentially promised marriage after the elections, and you can be sure that these are the arguments that we will have to wield against what’s left of the opposition.
Now we have to hope we can also win on the ballot.
I think Christian liberal groups could have a really strong impact against the proposed constitutional amendment this fall by framing it in the Ruth/Esther way.
Imagine framing it biblically, by mentioning how Ruth and Esther’s nontraditional relationship would have been unrecognized here today and they wouldn’t have shared the life they did were they not able to enter into a non-traditional civil pact.
I think you mean Ruth and Naomi, and Naomi was Ruth’s mother-in-law.
However, this does raise a very good point. Why do we grant benefits and protections to “couples?” Should it not be better to grant such privileges to anyone who has dependents? That’s one of the claims by conservatives, that marriage is about raising and providing for children (although they’re not willing to deny such benefits to couples who choose not to have children). What about a widow woman caring for her elderly mother-in-law? Or two siblings who live together? Or two or more very close friends who pool their resources to share a common household? Why should they not be covered, too?