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.”

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.

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.