Thursday, May 15, 2008

California High Court Mandates SSM

First the legislature (twice) and now the state supreme court in California say that same-sex marriage is necessary for the "fundamental constitutional right to form a family relationship." Today, they ruled four to three for marriage equality.

I'd love to be the gnat in Gov. Arnold Schwarzenegger's ear about now. He vetoed his legislature (twice) on this. Each time, he said it was for the courts to decide.

The dead whale on this beach is a November vote on a state constitutional amendment that would ban SSM. The report reads:
If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.
It is a DOMA-style amendment reading, "SECTION 2. Article I. Section 7.5 is added to the California Constitution. to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California."

Unlike similar appeals to high courts in New Jersey and Vermont, this court did not hide by sending it back to the legislature. All three found the marriage limits by gender discriminatory. It's quite a breakthrough that this court had the courage to provide the remedy.

The full decision is available as a PDF file here. This is 172 pages. I'll look for LeonardLink's analysis, likely before I'll digest it.

Meanwhile, the gist of today's ruling (pages 120-121) is that the prohibition on SSM is unconstitutional. As the majority opinion finds:
Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.

Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs.
The long opinion, replete with over 50 pages of concurring and partially dissenting commentary, seems to reflect the detailed consideration of the ruling. The majority also did not shy from that Proposition 22 stating voter preference — at least eight years ago — limiting marriages to a man and a woman. They wrote:
In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation. In view of the lengthy history of the use of the term “marriage” to describe the family relationship here at issue, and the importance that both the supporters of the 1977 amendment to the marriage statutes and the electors who voted in favor of Proposition 22 unquestionably attached to the designation of marriage, there can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state’s general legislative policy and preference.
It is very telling that these justices acknowledge how important it is what you call it, especially in a state with a fairly comprehensive separate-and-unequal domestic partnership legal structure. They conclude that this is so important, the state should not play games with same-sex couples.

So, assuming that the amendment does make it to the November ballot, the we'll find out whether Californians have softened under the increased public awareness of GLBT issues and the harmlessness of the partnerships. It has been eight years since they voted emotionally and vindictively. What now?

Evening Update: Goody, LeonardLink did hop on the analysis of the 120-plus pages of finding and 50-plus pages of concurring/dissenting opinion and playbill of legal sorts. Arthur S. Leonard rips into the sophism of no discrimination of homosexuals and marry different gender straights and that the state's contention that domestic partnerships mitigated the claims of unequal treatment. Today's ruling rejected that commonly held discrimination was somehow okay, or the majority held, "
the interest in retaining a tradition that excludes an historically disfavored minority group from a status that is extended to all others – even when the tradition is long-standing and widely shared – does not necessarily represent a compelling state interest for purposes of equal protection analysis."

Word from Arnie: In a refreshing spark of honor from a politician, Gov. Schwarzenegger responded to the court ruling by confirming his early remarks. It may be that he wisely wants to avoid being dragged into the likely nasty amendment campaign, but he stated simply, "
I respect the court's decision and as governor, I will uphold its ruling."

Prez Hopefuls Mumble: Click over to Towelroad, who had done the Presidential candidate work so we don't have to. Barack Obama and Hillary Clinton, as predictable, distanced themselves from civil rights and full equality. They support civil unions, but hail California's ruling as a reinforcement of the traditionally conservative position of states rights. John McCain, as predictable, is looking ahead to the one-man/one-woman amendment and took a potshot at the courts daring to do their job.

Tags: , , ,


John Hosty said...

First off, great write up on this!

"If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts."

From page 111 of the decision we find this:

"By the same token, the circumstance that the limitation of marriage to a union between a man and a woman embodied in section 308.5 was enacted as an initiative measure by a vote of the electorate similarly neither exempts the statutory provision from constitutional scrutiny nor justifies a more deferential standard of review. Although California decisions consistently and vigorously have safeguarded the right of voters to exercise the authority afforded by the initiative process (see, e.g., Associated Home Builders, etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591), our past cases at the same time uniformly establish that initiative measures adopted by the electorate are subject to the same constitutional limitations that apply to statutes adopted by the Legislature, and our courts have not hesitated to invalidate measures enacted through the initiative process when they run afoul of constitutional guarantees provided by either the federal or California Constitution."

That means that this petition is under the scrutiny of the same judicial body that just got done deciding gay marriage is ok. You cannot vote away inalienable rights, they supercede your right to vote on them.

massmarrier said...

John, I'm looking for the LeonardLink legal interpretation. I fear that the popular and judicial take is that the amendment pushes the decision beyond what is constitutional.

I favor your view.