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CA Chief Justice Interview

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The L.A. Times interviewed the Chief Justice of the California Supreme Court, Ronald George, who wrote the majority opinion in the marriage cases.

In the days leading up to the California Supreme Court’s historic same-sex marriage ruling Thursday, the decision “weighed most heavily” on Chief Justice Ronald M. George — more so, he said, than any previous case in his nearly 17 years on the court. …

[A]s he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled in a wide-ranging interview Friday.

“I think,” he concluded, “there are times when doing the right thing means not playing it safe.”

Yet he described his thinking on the constitutional status of state marriage laws as more of an evolution than an epiphany, the result of his reading and long discussions with staff lawyers. …

He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.

California’s decision, in a case called Perez vs. Sharp, preceded the U.S. Supreme Court’s action on the issue by 19 years. Even after that ruling, Californians passed an initiative that would permit racial discrimination in housing. The state high court again responded by overturning the law, George said.

Rather than ignoring voters, “what you are doing is applying the Constitution, the ultimate expression of the people’s will,” George said. …

“When is it that a court should act?” George mused. “When is it that a court is shirking its responsibility by not acting, and when is a court overreaching? That’s a real conundrum. I have respect for people coming out on different sides of this issue.”

George’s reputation for caution is based on the court’s tendency, under him, to decide cases narrowly, refusing to reach issues not necessary to the case at hand. Advocates thrust the central constitutional question of equality for gay people on the court; there was no way to avoid it. …

Santa Clara University law professor Gerald Uelmen, who has closely followed George’s court tenure, said “the biggest surprise” of the marriage ruling was that George favored it. Uelmen said George must have done “some real soul searching.”

The “very carefully written opinion” reflects that George “is very sensitive to how this will be perceived,” Uelmen said. “He realized that this more than any other thing he does as chief justice will define his legacy. He’ll certainly take a good deal of political heat over this.”

Mathew Staver, founder of Liberty Counsel, said he had long expected George to vote against same-sex marriage.

“His change from where I thought he would be is baffling,” said Staver, whose group promotes traditional marriage.

UCLA law professor Brad Sears said, “Definitely what created the majority was George’s support.”

Art Leonard Weighs In

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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.

CA Marriage Decision: Equal Protection Analysis

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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.