Digest of Opinion in The Marriage Cases

What I’m going to do here is try to condense the 116 pages of legal opinion, dense with legal citation, historical research, and policy analysis, that makes up the majority opinion of the Marriage Cases. I realize that this post is not very “brief,” particularly by the standards of blogs. But my objective is not to provide a five-sentence summary of the case, my objective is to educate the reader about what the opinion really does, dwelling on the important reasoning and the critical passages of the opinion. If all you care about is the result, then you don’t need to read the opinion at all — the punchline is, the Court says people of the same sex should be able to get married in California. But if how the Court gets to that result is a matter of importance to you, my digest will get you there a lot faster than the opinion. So here goes:

Introduction. First, the Court frames the issue. This case is as good an example as any of how framing the question can control the answer. More on this later. For now, it suffices to say that the Court framed the issue thus:

…the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated understate law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

Dumbed down somewhat, this looks like the question I’ve been asking: “If domestic partnership and marriage do the same thing from the state’s point of view, why not leave it at that?” As will be seen, the Court said, “Because that would make it ‘separate but equal’ which is, in fact, inherently unequal.” But the Court did not stop there. Stay tuned, law fans! Now we come to the numbered sections of the Court’s analysis.

I. Procedural History. First, the City and County of San Francisco started issuing marriage licenses to same-sex couples. The Supreme Court said, “Knock it off until we rule on whether you can do that.” Then a bunch of lawsuits got filed. The trial court decided that same-sex marriage was OK. Then it got appealed. The appeals court said no, it’s not. Then it got to the Supreme Court, and this opinion resulted.

II. Standing. Everyone has standing to assert or defend claims challenging the same-sex only marriage laws except for the Prop. 22 Legal Defense Fund. The Fund was arguing in favor of upholding the existing laws, and that’s the job of the State. The Fund cannot argue in the State’s place because the State must defend itself and the Attorney General has a statutory duty to defend the law to the best of his ability. The fact that the Attorney General is Jerry Brown and the Fund believes that AG Brown was secretly trying to lose the case because of his own policy preferences is no reason to give some advocacy group standing to appear in place of the State. And it looks like the State offered, and the Court considered, serious arguments in defense of the statutes, arguments that had worked in other states.

III(A). History of the Law of Marriage. Marriage has historically been between a man and a woman. The legislative history of the marriage laws shows that except for between 1971 and 1977, the statutes have contained an explicit limitation of the right to marry to make marriage opposite-sex specific, and the common law history of marriage has never, until very recently in historical terms, even contemplated same-sex marriages.

It is of no small amount of interest that marriage is framed, in the older construction of the law, as a contract. The original state constitution, adopted in 1849, provides that “No contract of marriage, if otherwise duly made, shall be invalidated by want of conformity to the requirements of any religious sect.” Thus, civil marriage has always been distinguished from religious marriage. For instance, A Catholic might divorce and re-marry; in the eyes of the Catholic Church, both the divorce and the second marriage are nullities and that Catholic is still married to the original spouse in the eyes of the Church. But as far as California is concerned, the second marriage, and not the first, is the one that is valid. This has always been the way things are in California, and it probably is how things are in every other jurisdiction in the U.S., for that matter.

Even now, Family Code § 300(a) defines marriage as: “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).” The clause “between a man and a woman” in that section is part of what was stricken by the opinion in the Marriage Cases. But it is still framed as a contract.

You can skip this paragraph if you want to avoid my opinion about this wrinkle in the law, although the point comes up again in section IV(A). [I do not like the notion that marriage is framed in contractual terms. A contract is an enforceable transaction between two or more parties, consisting of an offer, an acceptance, and an exchange of valuable consideration. Marriage, it seems to me, is something other than a transaction. It is a relationship. It requires legal recognition by the State. The Court in the Marriage Cases is right to call it a “union” of two individuals which “confers significant legal rights and obligations,” and the establishment of “an officially recognized and protected family.” Families are not properly seen as governed by the law of contracts, and the law rightly does not treat family relationship the same way it treats commercial relationships. I’ve suggested that employment is “more than a contract,” because the law imposes so many mandatory obligations for how employer and employee relate to one another that the contractual obligations between the parties are so frequently unimportant for determining their legal rights that the contractual component of that relationship is, at best, an afterthought. If employment is not “just” a contract, then how much more so is that true of marriage? If marriage is a critical part of our society, one of the building blocks of our very civilization, as well as a solemnized, dignified, and respected institution between two people which (hopefully) includes an exchange of deep love, then it seems crass indeed to treat that institution the same way we would pork belly futures. Now, we return to our regularly scheduled programming.]

After this, the Court tries to unpack what exactly is meant by “the right to marry.” If you have this right, how do you exercise it? What does it look like when you do? What, in order words, are the component substantive rights embraced by this concept? The Court says this right

encompass[es] the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. Those core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as a marriage.

Remember what I said before about “framing the issue”? Con law geeks like me will note in that passage several steps the Court has taken. First, the Court is using some particular buzzwords: “individual’s liberty and personal autonomy.” Con law scholars know that this is setting up to make an argument based on either the right to privacy or the right to substantive due process. Secondly, the Court is setting up the right as an individual’s right, not as a right that is exercised collectively by two individuals. Third, the Court is only explicitly describing a single facet of these rights, and leaving unexplicated the other legal rights and responsibilities “traditionally associated with marriage.” This last step is not necessarily dishonest, intellectually, but it does gloss over a lot of things, like having to comprehensively define what exactly marriage is. Fourth and finally, the right that the Court does choose to explicate is telling: the right to establish “officially recognized and protected family.” What’s more, that family must be “entitled to the same respect and dignity accorded” to traditional marriage. Without that “respect and dignity,” without that official recognition, the Court is saying, the right is not fulfilled.

From there, the Court determines that this is a “fundamental right” and therefore that the “strict scrutiny” test must apply to all attempts by the state to deny the exercise of that right to anyone. At this point, con law geeks all know that the state is going to lose. The strict scrutiny test places the burden of justification on the state, not the challengers, to first identify a compelling state interest, and second, to explain why the law, in its current form, is narrowly-tailored towards fulfilling that compelling interest. “Narrowly-tailored,” in turn, means that the law takes away only so much liberty as is necessary to protect the compelling interest of the state. Examples of cases in which the state has managed to meet this burden are few in number and usually deal with things like restricting access to places like military bases in wartime.

Finally, the Court looked at the “legislative history” of Proposition 22, and the other laws that preceded it, limiting the scope of marriage to opposite-sex couples. The Court found that every such effort beyond simply repeating the original definition of marriage found in the 1849 Constitution and the 1873 Civil Code (which in turn was adopted from an earlier New York law) and the traditional assumptions underlying it, was made in response to some effort, somewhere, by same-sex couples to seek marriage. In other words, the people who had put the explicit limitation of the marriage right in the law all did so by saying that the reason they were doing it was to prevent same-sex couples from marrying. In terms of legislative intent, then, the Court powerfully demonstrated that the law was written as it was for the explicit purpose of not allowing same-sex marriages.

III(B). Analysis of the Domestic Partnership Law. This is a relatively new creature in California law, having only passed into law initially in 1999. At first, the Domestic Partnership Law in California only afforded some of the rights and obligations of marriage, and only as recently as 2006 did the Legislature address the issue of filing of joint tax returns and declaration of joint income on those returns. I note, however, that some couples, both married and registered under the DPL, sometimes choose to file individually and not declare joint income, when the permutations of their taxes and earnings are such that this produces a lower overall tax obligation.

Despite what appear to be the best and earnestly well-intentioned efforts of the Legislature to create a DPL that provides a registered couple with as many of the rights, privileges, benefits, and treatment before the law as is within its power (the California Legislature cannot do anything about Federal rights), there remain several significant differences between registration under the DPL and marriage, set forth in the sure-to-be-oft-referred to footnote 24. Some of those differences are highly technical in nature and seem to me to be of only de minimis concern as a realistic matter — the Domestic Partnership registration is issued by and archived by the Secretary of State and not by a county clerk, for instance, which may be a matter of some administrative inconvenience for the registering couple or the couple seeking a stipulated dissolution of the partnership, but a minor administrative inconvenience does not seem to be a good reason to strike down a law. Yes, in some cases a higher administrative burden could be a material difference justifying an equal protections remedy — but there was no explanation or illustration of this to demonstrate whether the increased burden of dealing with the Secretary of State rather than a county clerk or a local Superior Court is a material burden, and most people dealing with the Secretary of State can do so easily through the mail.

Still, there were some identified differences between domestic partner registration and marriage that seem to me to be of material significance. First, domestic partners must cohabit before applying for registration; a married couple need not fulfill this requirement. Second, a person under the age of eighteen can marry with either parental consent or a judge’s approval; no such procedure exists for someone under eighteen seeking domestic partner status. Third, you can get a “confidential marriage” which results in the certificate and date of marriage unavailable for public records searches; no cognate provision exists for domestic partners. Fourth, a domestic partner cannot fully participate in the partner’s CALPERS benefits, but a spouse can (this is in part because of CALPERS’ involvement with various Federal entities) so the domestic partner of a state employee will lose some retirement benefits that would be retained by a widow or widower. Finally, it is not clear whether you can become a “putative domestic partner” the way you can become a “putative spouse” under a somewhat obscure but sometimes critical legal doctrine; the Supreme Court’s opinion cited a 2006 case suggesting that there was no way to become a “putative domestic partner” but did not refer to a case dated May 6, 2008 (nine days before the Marriage Cases opinion was published) that reached the opposite conclusion.

The Court here was attempting to show that the Domestic Partner Law is not “a rose by another name.” It is different, perhaps not dramatically so but substantively different nevertheless, from marriage. The Court treated most of these differences as minor, and rightfully so since as a realistic matter most of those differences would not come in to play for the average domestic partner. There are only a few thousand confidential marriages active right now, for instance.

IV(A): Fundamental Rights Analysis. Here, the Court fulfills the promise it made in section III(A), and affirms that the right to marry is a fundamental right guaranteed to individuals by the California Constitution. It breaks no new ground here; California established this in 1948 with the nation’s first-ever Supreme Court case striking down an anti-miscegenation law. That case, Perez v. Sharp, specifically found obnoxious a law that permitted interracial marriages that did not involve white people, and in practice was only enforced against marriages between black and white people.

Interestingly, the Court seems to vacillate for a few pages about whether the right to marry is a component of the right to privacy or the right of substantive due process. At least two people who I expect will have read this far into my digest — my former law partners — have wrestled with me to sort through the actually quite subtle differences between those two distinct origins of individual rights, so this will be of intellectual interest to them. Absent from the Court’s analysis is a theoretical explication of the difference between those two kinds of rights, though, because eventually the Court decides that marriage is both a privacy right and a substantive due process right.

What’s more, under California’s Constitution and its recognition of “affirmative” or “positive” rights, the force of this right is not just a “negative” right — the right to prevent the government from interfering with the exercise of the right. Very interestingly, the Court frames a “positive” right as the ability to compel the government to do something to affirm, recognize, or enable the exercise of the right in question. This is different than I had understood the concept of a “positive” right, a distinction drawn in the famous PruneYard v. Robins case, which held that California’s right of free speech applied on private property in certain circumstances — so I had thought that a “positive” right is a right that can be enforced against a private actor as well as against the government. I admit I’m much more comfortable with this week’s distinction between a “negative” and “positive” right, but it still doesn’t explain the somewhat limited but still good law of the PruneYard case.

And once more with the “framing the question” issue. The Court goes out of its way to argue that the widely-understood substance of the right at issue, and not the historical pedigree of the application of the right’s exercise by the parties, is what governs the court’s analysis. Thus, the Court does not see the plaintiffs as asking for the creation of a “new” right — this case is not about a “right to marry a same-sex partner,” it is about the generalized “right to marry.”

Again, the Court labors somewhat to make sure that the right is framed as an individual right rather than a right that a couple possesses. The analogy was to NAACP v. Alabama, where an organization was permitted to invoke the individual rights of its members to privacy; here, the individuals seeking to marry are simultaneously exercising their individual rights to seek recognition of their relationships with the other partner. It’s a thorny intellectual issue, but fortunately no one involved seems to dispute that the right to marry exists and that it at least gets treated like an individual right by the Courts.

After doing this, the Court determines that the right to marry is a fundamental right, with an extended policy analysis of the role of marriage in society. I might distill about ten pages of policy analysis to the two-word phrase “Marriage: Good!” and leave it at that. But interestingly, the Court picks up a ball left on the field in 1948 by the Perez case and says that “Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men.” And women. So here, again, we have a discussion that a marriage is not a contract, or at least not just a contract.

The right to marry is phrased here in the alternative as the right to form a family. (I’ll deal with the issue of procreation below.) And that family, the Court maintains, must be entitled to official recognition to be the same thing as marriage. This produces a level of social prestige that can affect the couple’s social and family interactions and thus the state’s failure to provide an equal level of dignity can cause tangible harm. Here, I think the Court is sidestepping a rather important issue — you cannot legislate social prestige, either under the auspices of marriage or any other kind of legal institution. I know, or at least know of, plenty of couples whose opposite-sex marriages are perfectly legal but which are subject to wide disapproval and sneering condemnation by their own extended families.

Nevertheless, given the high importance placed on marriage in the legal and social arenas, the Court affirms the idea that marriage is a fundamental right, justifying its eventual use of the strict scrutiny test.

But then we get to the beating heart of the opinion. This heart has two chambers to it. The first is this passage:

Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it.

This is the first critical step the Court takes. The right to marry is so fundamental, so important, that it is beyond the realm of the political branches, and even beyond the realm of the people acting in their legislative capacity directly, to substantively restrict it. Here, the Court is sticking its neck out — it is saying, “This is a deep part of our constitution. You can’t change it without changing the Constitution itself.” Of course, that is precisely what those who object to the holding of this case will try and do this November.

Having done that, the Court then takes the next step, the one that will be cited in a variety of other contexts later on. The Court pronounces, and this really is new law, that sexual orientation discrimination is a suspect classification, on par with race and gender, for purposes of the Equal Protections Clause of the California Constitution. “we now similarly recognize that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.” Thus, any law that discriminates on the basis of sexual orientation will be subject to the most searching analysis the Courts can muster.

Oh, and for those of you who are jumping up and down saying “Won’t somebody think of the children?”, note that here the Court refers to the right to raise a family rather than the right to squeeze out crotchfruit. Again, the way you frame an issue determines the way it will be resolved. Gay people can certainly raise children together, even if they cannot conceive them without outside assistance.

The Court follows my thinking on the “procreation” argument against same-sex marriage exactly. Not that my thoughts were novel or innovative — I have been one of tens of thousands of people writing on this subject who have noticed that opposite-sex couples who cannot conceive are still permitted to marry, and this has always been the case. Post-menopausal women, men who have been sterilized or are impotent, couples whose blood types or other physiologies prevent conception — no one would ever or has ever questioned the legitimacy of their marriages. These people, too, possess the fundamental right to marry.

This argument hit its most clever riposte from the Indiana Supreme Court, which held in the case of Morrison v. Sadler that the real value of marriage was that it would encourage a couple who unintentionally conceived to jointly raise their children. For that reason, the Morrison Court said, marriage needs to be given substantial deference. Importantly, the Morrison Court analyzed the right to marry and the discrimination against sexual orientation under the deferential “rational basis” standard, and I must agree that under that standard, the Morrison Court identified something that a state could rationally do. My quibble with the Indiana Supremes was always that it used the wrong standard, not that it applied that standard improperly.

The California Supremes, though, take a different response to the Morrison argument. “Yes,” they say, “fostering a two-parent environment for children whose parents didn’t exactly intend to have them is certainly one of many good social effects of marriage. But it is not the only reason that people get married, and because the right to marry is broader and different than the right to procreate, this is an insufficient argument to deny marriage to opposite-sex couples. After all, the right to marry has never been restricted to only those couples who plan to, can, or might have children.” That is, I think, a powerful response.

Finally, in a footnote, the Court also deals with the “slippery slope” argument — the one that goes, “Well, it starts here, and next you’ll have to recognize a right to incestuous marriage and then a right to polygamous marraige.” Not so fast, says the majority in footnote 52. “The state continues to have a strong and adequate justification for refusing to sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment.” This footnote is laced with citations from around the country.

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.

Translated: a same-sex relationship must be given the exact same legal recognition and dignity in the eyes of the law because to do otherwise is to discriminate in a Constitutionally impermissible way against homosexuals.

IV(B): What’s In A Name? Here, the Court deals with the “nomenclature” argument. Not returning to footnote 24, the Court effectively treats the DPL as providing as many rights as California can to domestic partners as are provided to married couples. The court here says, in essence, if this is a separate but equal institution, that is inherently unequal. The plaintiffs in Perez v. Sharp would not have been, and should not have been, satisfied with a right to enter an “interracial commitment relationship” — they wanted to be “married” because that word meant that their marriage was the same as the one-race couple’s down the street.

I’ve always thought this was not a “separate but equal” issue, I suppose because it seems like it would be so easy for someone dealing in good faith with domestic partners to treat them like they were a married couple. This isn’t, I thought, the same thing as “white” and “colored” drinking fountains in Alabama during the 1940’s. I understand, with ease, why having a separate drinking fountain was inherently demeaning to black people. But the Court is perhaps wiser than I in taking that thought and insisting that it does apply to the DPL, particularly in light of the extensive history of the initiative statute as it was presented to the voters — it was more or less explicitly discriminatory in its arguments against gay people, aimed specifically at their relationships, and the law’s use of a different name to describe them is, in a sense, a concession to the expressed intent of those voters to discriminate against gay people and their relationships and to insist that what they have together and feel for each other is somehow different, and less valuable or important, than what straight people do in their marriages.

I’ll have to re-consider my thinking on this issue. The Court’s opinion, though, is clear and short. This is not a rose by another name, and it does not smell as sweet. The fact that it has another name means that it does not have the same level of official recognition and official dignity. Therefore, it is different and therefore, it is unconstitutional.

V: Putting it all Together. From here, the pieces fall into place. The DPL and the limitation of the marriage right were aimed at preventing gay people from marrying each other. This is discrimination against homosexuals. This is a limitation of a fundamental right, the right to marry. Along the way, though, the Court notes that this is not sex (gender) discrimination. It is, however, sexual orientation discrimination: “By limiting marriage to opposite sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation.” The court dismisses as “sophistry” the argument that a gay man can still marry a woman, and a straight man cannot marry a man. A gay man is very unlikely to want to marry a woman, and a straight man is very unlikely to want to marry a man.

Here, the Court applies its test for determination of when a suspect class exists to the issue of discriminating against homosexuals. The test, for those of you who care to look it up, is described in the amusingly named case of Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 18-19: the defining characteristic must be 1) based on an immutable characteristic, 2) bear no relation to the person’s ability to perform or contribute to society, and 3) be associated with a stigma of inferiority or second class citizenship. Applying this to homosexuality, the Court found no problem whatsoever with the second and third prongs of the test, but the first gave it a moment’s pause because the scientific scholarship is not at all clear as to why people are gay and whether they can change being gay. But the Court must have been convinced that homosexuality is immutable enough.

For me, I was convinced that homosexuality is not a “choice” by a gay friend asking me, “When did you decide to be straight?” I’ve never decided to be straight, I just always have been. That was a very convincing argument. I am less convinced by the argument, “If someone sat down to decide to be straight or gay, looking at how society as a whole treats gay people, what person would decide to be gay?” My answer to that would be, “The same sort of person who decides to get a pointy spike driven through the septum of their nose as ‘body art.'” Some people seem to want to be different and to draw social approbation to themselves. Not a lot of gay people I’ve met, but there are people like that, and it’s possible that there are gay people who do gay things to rebel against their parents, against society, and so on. And I’m not convinced at all that “Christian reprogramming” (aka “brainwashing”) can “cure” homosexuality. At best, it can create powerful negative association with homosexual sex acts, and maybe even make a homosexual never again have sex with someone of the same sex as them. But it won’t change the desire.

And then there is the question of religion. Religion is obviously not immutable — people convert all the time. People change their faiths, they come to believe new things (or lose their faiths) or they even switch denominations for a wide variety of reasons. Yet religions is treated as a “suspect class” and rightly so — for people of very strong faith, it is not something they can change like a necktie. I am a person of no faith, and were I to be asked, in earnest, to avow a religious faith I could not truthfully do so. Indeed, at a fairly young age, I looked at the religion of my family (Roman Catholicism) and realized, “I don’t believe any of this crap.” From there, it took me several years of looking around at other kinds of Christianity and then other kinds of religions, before I realized, “I don’t believe any of that crap, either.” And then it took me even longer before I would admit to myself, “I just plain don’t believe in any kind of God at all.” Along the way, I might have identified myself as Catholic and I went to Masses from time to time to please other people around me. So at what point did my religion “change” from Catholic to atheist? (I would argue that I simply don’t have a religion at all, but “I’m an atheist” is an answer to the question “What religion are you?”) Nevertheless, the law treats religion as a suspect classification when considering discrimination and the equal protections clause — even though religion is, actually something that can change. The law realizes, though, that the change may not be the result of a conscious effort on the part of the believer and even if it is, it is the result of immense effort. So this seems right to me.

Interestingly, the State argued that there should be a fourth prong to the Sail’er Inn test, mainly that the group in question was unable to use the political process to address its needs. The Court rejected that proposed new prong to the test, because there was nothing stopping any other suspect class from participating in the political process, either.

So, what harm comes to the plaintiffs from being labeled “domestic partners” instead of “spouses”? First, the novelty of the term “domestic partners” “realistically must be viewed as constituting significantly unequal treatment to same-sex couples.” In other words, prestige. Second, because gay people have been the victims of discrimination historically, and the phrase “domestic partners” is aimed at identifying gay people, the phrase risks encouraging social discrimination and disparagement. Third, the novelty of the “domestic partner” nomenclature is confusing in a way that “marriage” is not, meaning that people interacting with domestic partners lack the social training to deal with them the way they would know how to deal with married people (for instance, most people are reluctant to ask a married person out on a date).

That, then, is what’s in a name. And the state identified no compelling interest, and certainly could not explain how its laws were narrowly-tailored to realize that interest, to justify them. Preserving the traditional definition of marriage is not inherently a compelling state interest. Encouraging procreation is not a compelling state interest. Encouraging child-raising in a family environment is, even if it is a compelling state interest, not advanced in a narrowly-tailored way by a law preventing gay people from marrying each other because either with or without that law, opposite-sex couples would still have children, or not, and get married, or not.

Finally, the Court addressed the “democratic” argument — that a change in an integral social institution like this cannot come through the judicial process and should only come from the democratic process of the Legislature, Governor, and the people acting as a whole. In response, the Court agrees that it cannot “redefine” marriage but rather that it is executing its responsibility in a system of government intended to have checks and balances, and that its role in so doing is to interpret and apply the California Constitution to laws passed by the legislature and people of California. This argument is the basis for Justice Baxter’s dissent.

The Court says that it did not “redefine marriage” when it struck down the anti-miscegenation statute in Perez, and it is no more doing so today. The judicial abolition of the doctrine of coverture, in which the wife’s legal identity was merged into that of her husband, and converting her into a form of chattel, did not “redefine marriage.” The courts’ restriction and eventual dispensation of the doctrine of recrimination, or finding fault within a divorce action, did not “redefine” marriage and led to the Legislature adopting a no-fault divorce statute. None of this “redefined” what marriage was, because the right to marry was there all along, unchanged, and exercised by large numbers of people who wished, unforced, to exercise it. And the limit law is subject to Constitutional analysis whether or not it was the product of the Legislature or the product of a plebiscite or initiative.

VI: The Remedy. The Court struck the phrase “between a man and a woman” from Family Code § 300(a) and struck Family Code § 308.5 (“Only marriage between a man and a woman is valid or recognized in California.”) in its entirely. The Court ordered that writs of mandate issue to the appropriate state officials (the Governor, Secretary of State, Attorney General, and the various county clerks) to issue marriage license applications to same-sex couples, and to issue marriage licenses and marriage certificates to them, if they otherwise qualify for such treatment (they still have to pay the fee, demonstrate consent, not be married to anyone else, prove that a solemnization ceremony has taken place, and demonstrate a lack of consanguinity). However, those writs have been stayed for thirty days, because the Court anticipates that a request for a stay will be made in light of the pending Constitutional amendment initiative.

Justice Baxter’s dissent calls the whole thing “legal jujitsu,” and his opinion suggests that domestic partnership, by any name, must necessarily be a lesser form of institution than marriage because Prop. 22 says that marriage cannot be given to a same-sex couple. To the extent that the opinion rests on a substantive due process right, he scores his best point by noting that a substantive due process right must, by definition, be deeply-rooted in the history and culture of our nation, and same-sex marriages are most certainly not that. Of course, he has “framed the issue” differently than the majority; he sees this as a question of whether people of the same sex enjoy the right to marry one another, not a question of whether the state can limit the right to marry to only people of the opposite sex. Finally, and the area where Baxter devotes the most effort, he faults the majority for elevating a statutory protection granted to homosexuals to the level of a Constitutional one; doing so, he says, cheapens the Constitution and in this case subverts the explicit expression of the democratic majority that such a thing not happen. In essence, then, Justice Baxter says that the majority got it wrong at the level of framing the issue, at the level of finding an equal protection violation, and at the level of finding sexual orientation to be a suspect class. Justice Chin joined this dissent.

Justice Corrigan’s dissent begins by stating her policy preference that same-sex unions be called marriages; however, she would only override the voters, who she acknowledges feel differently than her, if she could find a compelling reason to do so in the Constitution. She disclaims the analogy to the race cases, because she sees that the democratic process has worked to benefit homosexuals where before it was used to repress racial minorities. Unlike the majority, she would not do so because she does not see any way to get around the “traditional definition” of marriage as the union of a man and a woman, and she sees the DPL as providing all the same rights as marriage, or at least that it is capable of doing so. Therefore, she does not think that the plaintiffs have standing to challenge the statutory scheme since they can avail themselves of the DPL, and the nomenclature is a matter of no significance. But, she believes that this opinion does redefine marriage into something it was not before, and that this is anti-democratic in a way that exceeds the Court’s legitimate powers to be a check on the democratic process. She thinks the debate is not yet over and that the same-sex couples may yet win — and the court should allow that process to happen and play out before intervening.

I fault Justice Corrigan for saying that on the one hand, the plaintiffs have the same substantive legal rights as married people and therefore lack the ability to challenge the marriage statutes — and on the other hand, complaining that recognizing the plaintiffs as “married” somehow substantively changes marriage. If the DPL is the same substantive thing as marriage for same-sex couples, then marriage is not substantively changed by giving it to same-sex couples. It’s a distinction without a difference, an arbitrary limitation of nomenclature that does not survive even a rational basis analysis.

Finally, I might add that the list of counsel is ten pages long and it reads like an All-Star’s roster of constitutional lawyers and lawyers involved in political activism. The best in the business, or at least the most famous in the business, were on all sides of this one.

There. Took all day to write and a very long time to read and analyze. I hope it’s clear enough for a layman to read it and understand it (even if you don’t agree with it) and that you can see that a considerable amount of thought and research went into the opinion.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Salsola — I’m persuaded by the majority’s reasoning and would most likely have signed off on the majority’s opinion. But Justice Corrigan’s dissent — democracy is working just find and doesn’t need the court’s push to help it along — is worthy of careful consideration. In the end, I think she’s wrong because I think marriage really is a fundamental right and we need a good reason not to offer it to homosexual couples, and “it’s historically not ever been offered to them before” does not strike me as a very good reason.Magenta — I’m sorry I couldn’t make it shorter; it wasn’t my objective to ‘summarize’ but rather to ‘digest’. I did manage to condense 175 pages into what translates to about 11. There are shorter analyses out there on the web if you want to find them.

  2. try to condenseThank God you weren’t present in Philadelphia, on September 17, 1787.Longer than the London Times (-:

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