People can talk about activist liberal judges all they want. But the simple truth is that what has changed these past twenty years is not the nature of judges, but our collective understanding of what sexual orientation is. Behind all this is a deep, deep shift in our consciousness from thinking of gay people as defective straight people who perform certain sexual acts to their being the moral equivalent of heterosexuals, capable of forming relationships and building families as well as anyone. This is at the core of the generational divide: not that young people are more “liberal” or “progressive” than their parents. On an issue like abortion, they’re not. It is simply that the next generation has grown up with a different definition of who gay people are. They see gay people as interchangeable with straight people. They don’t think we’re inferior to them. Because they know us. …
Is this shift an ideological one? I don’t believe so. It’s an empirical one, based on increased knowledge of who gay people are. …
Category Archives: General
CA Marriage Decision: Equal Protection Analysis
There’s one aspect of the California marriage decision that’s almost as important as the outcome: the legal reasoning the court used in reaching its result. The opinion contains great news for gays and lesbians in California — and perhaps elsewhere — that goes beyond marriage.
The California Supreme Court didn’t just state yesterday that marriage is a fundamental right open to gay and lesbian couples. It also became the first high court in the nation to state that any law that discriminates against gay people will be treated with the same skepticism as laws that discriminate on the basis of race or gender. Any such laws will have to survive a heightened level of scrutiny in order not to be found unconstitutional. Not even the U.S. Supreme Court uses that heightened standard for sexual orientation discrimination.
In deciding cases involving equal protection violations, the U.S. Supreme Court uses different levels of scrutiny depending on the characteristic that is being discriminated against. Under the lowest level of scrutiny, “rational basis” scrutiny, a government entity merely has to show that the discrimination is rationally related to a legitimate government interest. The classic case comes from the 1950s, in which the Court upheld an Oklahoma law stating that optometrists were allowed to replace lenses but opticians were not. The Court found that the state legislature could have put forth a rational reason for the law.
The Court uses higher levels of scrutiny in evaluating laws that discriminate against certain groups. While the criteria seems flexible, these are generally groups that have a long history of suffering from discrimination. The most common are racial minorities and women. But the Supreme Court has never stated that gays and lesbians deserve the same heightened protection. Even when it’s struck down laws that discriminate against gays — such as the sodomy laws and the Colorado constitutional amendment that outlawed any laws that bar gay discrimination — the Court used rational basis scrutiny, finding that there was no rational reason for these laws.
In interpreting their own state constitutions, state supreme courts tend to follow the lead of the U.S. Supreme Court. State constitutions can’t provide fewer rights than the U.S. Constitution does. But since constitutional rights are a floor and not a ceiling, state constitutions are free to grant more rights than the U.S. Constitution does. To my knowledge, and to the knowledge of most commentators I’ve read since yesterday, until yesterday no state supreme court had treated sexual orientation as a suspect classification in a law. But now the California Supreme Court – allegedly the most influential state court in the nation — has done so.
Even if the proposed constitutional amendment restricting marriage to opposite-sex couples passes in November, that ruling will stand. (Except in the area of marriage, of course.) And perhaps other state supreme courts will eventually follow California’s lead.
Summary of the California Marriage Decision
Summary of the main opinion in the California marriage decision:
pp. 1-12: intro; summary of the conclusion.
pp. 12-18: history of the litigation, which began in 2004.
pp. 19-22: procedural point on the mootness of a challenge involving a previous stay.
pp. 23-28: history of California marriage statutes from 1849 to 1992.
pp. 28-36: discussion of whether Prop 22, passed in 2000, was intended to ban same-sex marriages from being performed in the state, or just to ban recognition of same-sex marriages performed out of state. The court says: both, therefore this case involves a challenge to Prop 22 as well as to legislatively-enacted marriage statutes.
pp. 36-47: history of California’s domestic partnership legislation as it evolved from 1999 to present.
p. 48: intro to substantive discussion.
pp. 49-51: beginning of discussion of marriage as a fundamental right; the right touches on liberty and privacy/autonomy.
pp. 51-53: The proper scope of analysis is the fundamental right to marry, not the fundamental right to same-sex marriage:
[Plaintiffs] are not seeking to create a new constitutional right — the right to “same-sex marriage†— or to change, modify, or (as some have suggested) “deinstitutionalize†the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords to opposite-sex couples.
pp. 53-66: examination of the nature and substance of the interests that the right to marriage protects. Marriage has both societal and individual benefits.
pp. 66-72: the state constitution guarantees this fundamental right to everyone, regardless of sexual orientation.
pp. 72-79: procreation is irrelevant to the right of marriage. Married couples are not required to have children (pp. 73-77); some couples raise their non-biological children (couples who adopt; same-sex couples) (pp. 77-78); conclusion of fundamental-rights analysis.
pp. 80-82: the word “marriage” is important here because opposite-sex couples have been allowed to use it but same-sex couples have not.
pp. 82-84: beginning of equal protection analysis; what standard of review is appropriate: rational-basis scrutiny (where discriminated party has burden of proof), or strict scrutiny (where discriminator has burden of proof)?
pp. 85-93: same-sex marriage discrimination cannot be considered sex discrimination, so no strict scrutiny on that basis.
pp. 93-95: same-sex marriage discrimination is discrimination on the basis of sexual orientation.
pp. 95-101: sexual orientation discrimination deserves strict scrutiny because it is a suspect classification (first time CA Supreme Court has stated this! yay!).
pp. 101-106: the classification also impinges on a fundamental right, marriage; this is a further reason why strict scrutiny is required.
pp. 106-119: under strict scrutiny analysis, the discrimination — denying same-sex couples the right to marry — is unconstitutional because it is not a necessary classification that furthers a compelling government interest, as follows:
pp. 107-108: the CA constitution does not require that marriage be limited to a man and a woman.
pp. 108-111: courts are not precluded from weighing in on the matter but rather are obligated to do so.
pp. 111-114: laws passed by popular initiative are not exempt from constitutional scrutiny, because a constitution is a higher expression of the people’s will than a popular initiative.
pp. 114-116: historic and well-established nature of the marriage discrimination is not compelling, because values can change over time, as has been shown with other issues.
pp. 116-119: allowing same-sex couples to get married does not harm opposite-sex couples or their children, and it does help same-sex couples and their children; therefore, no compelling interest in marriage discrimation against same-sex couples.
pp. 119-121: what is the proper remedy: deny marriage rights to everyone, or extend marriage rights to same-sex couples? The latter. The marriage limitation as set forth in state law and in Prop 22 falls. State officials are ordered to take all actions necessary to effectuate this ruling.