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Herewith some observations about the California Supreme Court’s marriage decision. . .
In terms of its importance: 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, the Netherlands, 16.5 million, Belgium, 10 million, and little Massachusetts, rounding out the list with 6.5 million. (Thanks to Rob Wintemute of the Faculty of Law, Kings College, London, for forwarding an email that prompted me to this comparison.)
When Massachusetts began to let same-sex couples marry in the spring of 2004 in response to the 2003 Massachusetts Supreme Judicial Court ruling, the impact outside of the state was sharply limited by the Attorney General’s interpretation of an old statute forbidding marriage licenses to out-of-staters whose home state would not allow them to marry. As a result of that, and some litigation in the Massachusetts state courts, it seems that the only U.S. residents who have been allowed to marry in Massachusetts are Rhode Islanders (based on a possibly dubious interpretation of Rhode Island law by the Massachusetts courts) and a few New Yorkers who rushed in to marry in 2004 before state government threats to local clerks shut down that process. So we did not see a stream of same-sex couples from around the country flocking to Massachusetts to marry. And, as Massachusetts is a relatively small state, we have not seen a big flood of married same-sex spouses from Massachusetts moving to or traveling through other states and finding themselves in situations where they were trying to get those other states to recognize their marriages. One lesbian couple brought a lawsuit seeking recognition of their Massachusetts marriage in Florida, and were turned down by a federal district judge, citing the federal Defense of Marriage Act and local Florida policies against same-sex marriage. Perhaps a few divorce attempts around the country have followed, but the impact of same-sex marriage in Massachusetts has been mainly confined to Massachusetts.
By contrast, the opening up of marriage in California will undoubtedly have a much larger impact. 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. In an interesting article in the new issue of the journal Law & Sexuality, Andrew Koppelman forecast that the next big wave of marriage litigation will center around recognition of out-of-state marriages. See A. Koppelman, The Limits of Strategic Litigation, 17 L. & Sexuality 1 (2008). The California ruling makes this even more likely.
To the charges of judicial activism and the reflex attribution of the California decision to liberal Democrats, one need only point out that six of the seven judges on the court were appointed by Republican governors, that the one Democrat on the court is widely seen as a moderate, and that Gov. Schwarzenegger’s appointee, partial dissenter Carol A. Corrigan, stated in her opinion that same-sex partners should have the right to marry, but they should have to win it through the political process, not through the courts. Further on the characterization of this as an "activist" court, the Los Angeles Times reported today the views of Professor Gerald Uelmen of the University of Santa Clara Law School, who said he was "blown away" and "very surprised" by the decision. Uelmen: "The court is exerting some leadership here, and I think it needs to be said that it is a new role for the court. This has not been a court that has been willing to stick its neck out and lead the way on cutting edge issues like this that involve such strong political feelings." He also suggested that the court’s vote reflected public opinion in California, which has been moving towards support for marriages for same-sex partners, to judge by public opinion polls. (Proposition 22 passed with 61% of the vote in 2000, but that’s almost eight years ago and support for marriage for same-sex couples has been steadily growing among the younger adult population.)
An interesting trivia observation: We now have two decisions by the highest courts of a state holding that same-sex couples are entitled to marry. They were both written by the Chief Justice of the court. They were both decided by 4-3 margins. The Chief Justice in each case was appointed by a Republican governor. Indeed, in both states a succession of Republican governors in recent years had meant that the high courts of the state were not totally dominated by Democratic appointees. Thus, there is a bipartisan tinge to both of these decisions. (Of course, one readily notes that the appointment process is very different as between the two states, with the governor of California unconstrained in appointments, although the appointees must subsequently stand for a confirmation vote by the people, while the governor of Massachusetts is limited to selecting from among candidates recommended by a screening body whose membership is only partly chosen by the government.)
Up above, I said "when/if" the court’s opinion goes into effect... The Alliance Defense Fund people quickly announced that they would seek a stay of the court’s order, pending the vote in November on an initiative to amend the state constitution to prohibit marriages between same-sex couples. Signatures have already been submitted to the Secretary of State seeking to place such a measure on the ballot, and it is widely believed that by mid-June that official will be certifying that sufficient valid signatures were submitted and assigning a number to the new Proposition. The ADF people will argue that allowing same-sex marriage for a few months and then dealing with the question of validity of such marriages after the initiative passes (if it does) would create problems that can be simply avoided by delaying the effect of the ruling.
Is it likely the Supreme Court – or the Superior Court in San Francisco, to which this case should be returning for entry of a final order – would grant a stay? One of the less-discussed features of the court’s opinion is a section finding that in fact two of the parties who argued to the court should not have been there due to lack of standing: Liberty Counsel and Alliance Defense Fund. The court concluded that their interest in the litigation justifying participation was at an end when the court halted the San Francisco marriages in 2004. Presumably, the courts would now find that ADF lacks standing to seek a stay. Logically, it would be up to the losing defendant to seek a stay, and that would be the State of California. In this case, the state was officially represented by the Attorney General, but the Governor hired separate counsel to represent him in the arguments before the Supreme Court. The Governor has announced his acceptance of the court’s decision and his opposition to the constitutional amendment, so it seems unlikely he would seek a stay, and that leaves Attorney General Jerry Brown, who seems an unlikely supplicant for such relief. So I will cautiously predict no stay, and that the decision will go into effect sometime in June, perhaps a little later in the summer depending how long the bureaucrats spin out the necessary act of compliance. Most sources seem to indicate that 30 days from the date of decision is the norm for these things. June weddings?
Another widely-overlooked part of the court’s decision was its vindication of Governor Schwarzenegger’s vetoes of the two attempts by the legislature to enact marriage for same-sex couples in 2005 and 2007. (This was one of the holdings that was unanimous, another being that the challenged marriage policies did not discriminate on the basis of sex.) Schwarzenegger took the position that the legislature lacked the power to legislate on this subject because of Proposition 22, which enacted one of the statutory provisions under challenge. Under California law, a statute enacted by the people through the initiative process may not be repealed or superseded through ordinary legislation. Only a new voter initiative could take such action. The lead legislative sponsor of the marriage bills, Mark Leno of San Francisco, argued that based on the way it was sold to the people in 2000 and the way it was codified by the state in the part of the statute books devoted to recognition of out-of-state marriages, Proposition 22 should be interpreted to deal solely with the question of recognition of out-of-state marriages, thereby leaving it open to the legislature to enact his bill, which amended a different section of the state’s family law dealing with who could marry in the state. He was able to persuade the Democratic majorities in both houses of the legislature, but not the governor, who pointed out that as the marriage question was pending in the courts and the authority of the legislature to pass these bills was questionable, the matter should be left up to the courts. The Supreme Court agreed, rejecting Leno’s interpretation of Proposition 22 and finding that by its plain language the statute that it enacted banned the performance of same-sex marriages within the state. (Although this made it partially duplicative of an existing statutory provision enacted in 1977, the difference was that the 2000-enacted statute could not be changed by the legislature, and thus was not merely duplicative.)
Along the way to reaching its final conclusion on marriage, the court made an important advance on another doctrinal front. For the first time in the United States, an appellate court of final jurisdiction has ruled that sexual orientation is a "suspect classification" for purposes of equal protection under a state constitution. That is big news indeed, since it significantly changes the way of analyzing equal protection challenges to governmental laws and policies that discriminate on that basis. If a characteristic is not a suspect classification, then discrimination based on that characteristic will be invalidated only if the court can imagine no rational justification for the challenged law or policy, and there is no burden of proof placed on the government – the burden remains on the challenger to demonstrate the sheer irrationality of the policy. This is a very difficult standard for plaintiffs to meet. The U.S. Supreme Court has ruled that majoritarian moral disapproval or sheer animus may not serve as a "rational justification" (see Romer v. Evans [1996], striking down a Colorado anti-gay initiative, or the much earlier Moreno v. U.S. Department of Agriculture, striking down a provision of the food-stamp law designed to disqualify "hippy communes" from receiving food stamps), but in marriage cases around the country several courts have accepted the absurd "channeling accidental procreation" theory as a rational justification for limiting marriage to different-sex couples.
If a characteristic is a suspect classification, on the other hand, the burden is placed on the government to show that its challenged policy is necessary to achieve a compelling state interest, and that the policy is narrowly tailored to achieve that interest in the least discriminatory way possible. Discriminatory policies using suspect classifications are rarely upheld by the courts. So the 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. . .)
How the court got there is interesting. It rejected the salience of "immutability" as an essential component of the analysis, pointing out that California courts have long treated religion, a non-immutable characteristic, as a suspect classification. (Doubts about the immutability of human sexual orientation were cited by the court of appeal in this case to reject the suspect classification theory.) The court also rejected the argument that the incredible success of the California LGBT rights movement in getting legislation passed in recent years meant that LGBT people are politically powerful and thus do not need the assistance of demanding judicial review to cope with the occasional adverse treatment by government. If this were so, the court observed, neither race nor sex would be treated as a suspect classification, but they are well-established as such due to the history of political exclusion and discrimination on those bases, even though racial minorities and women are now recognized as politically powerful groups in California. And nobody disputes that until recently there was a history of adverse treatment of LGBT people by the state and society at large.
The Massachusetts Supreme Judicial Court did not get into the suspect classification analysis in its marriage decision, because the court concluded that there was no rational justification for excluding same-sex couples from marriage. This was actually, in my view, a weakness of that ruling, not because I think there are really good rational justifications, but because the court’s methodology in that case seemed to depart from the usual mode of analysis, in effect putting a substantial burden of justification on the state without explicitly concluding that the burden should be shifted because the marriage laws discriminated based on a suspect classification.
A big question: Will the California Supreme Court’s conclusion that sexual orientation is a suspect classification be influential outside of California? The U.S. Supreme Court has refrained from taking any position on this question, contrary to the frequent assertions by lower courts (federal and state) that Romer v. Evans decided the matter against suspect classification. What the Court has done in its main gay rights rulings in which the question could have been addressed is to decide the cases on other grounds so that the question need not be addressed.
In Bowers v. Hardwick, the 1986 Georgia sodomy case, the statute in question did not facially discriminate based on sexual orientation, and the Court treated the case as entirely a question of due process. (In dissent, Justice Stevens mounted a compelling equal protection argument.) In Romer v. Evans, the Court decided that the anti-gay Colorado constitutional amendment was a paradigm violation of the equal protection clause as the only possible explanation for it was sheer animus, so there was no need to engage in conventional equal protection analysis to decide the case. (This sent Justice Scalia into a real tizzy in dissent, as he embraced the view of many lower courts that Bowers v. Hardwick, a case not even mentioned in the majority opinion, meant that states had a right to discriminate against gay people based on moral disapproval or dislike, but, perhaps contradictorily, argued that there was no evidence that the Colorado electorate was homophobic as a group.) And, in Lawrence v. Texas, the most recent sodomy ruling, the Court once again decided the case on due process grounds, even though the statute in question openly discriminated against same-sex couples. (Justice O’Connor, concurring, did rely on equal protection, but spoke of "more searching" judicial scrutiny when a non-suspect classification is used in a way that interferes with private or intimate associations.)
Why has the U.S. Supreme Court been reluctant to confront the question of suspect classification head on? One possibility is that a majority of that Court has realized that if its method of determining suspect classifications is objectively applied to the question, sexual orientation should be found to be one, and that would immediately render vulnerable a host of federal statutes and regulations, most significantly the rules governing military service. (Actually, finding sexual orientation suspect would have been more meaningly prior to the Clinton Administration, since Bill Clinton, for whatever damage he did by approving "don’t ask don’t tell" and DOMA, actually moved to eliminate many of the remaining vestiges of anti-gay federal policy, especially the obnoxious practices of the security clearance people and employment policies of the civilian federal agencies and departments.) After all, what is the purpose of this classification, and why the terminology "suspect classification"? It means that when government discriminates on certain grounds, there is automatically reason to be suspicious that the challenged policy improperly subverts the requirements of equal protection of the laws. We suspect that with racial classifications because, as justices are now fond of saying, it is hard to conceive of a legitimate use of race by government, and the U.S. Supreme Court (unlike some state courts) has hesitated to deem sex a "suspect classification" precisely because the justices can imagine some circumstances where the actual differences between men and women may be relevant to some government policy; however, the history of unjustified sex discrimination has inspired the court to embrace what is sometimes called a "middle tier" under which it will subject sex discrimination to more demanding review, if not requiring the state to prove a compelling justification.
Finally – at least for purposes of this posting, because I’m sure there will be plenty more to say about this ruling in the days and weeks and months ahead – I think it is worth saying something about a group of people who have been ignored in the immediate flurry of press attention to this historic decision: the clients and lawyers whose courage and hard work made it possible. As of now, the link to the video recording of the argument is still on the court’s website, and anybody with some time on their hands would be well-advised to go back and take a look at the stellar examples of oral advocacy we got from Shannon Minter and Therese M. Stewart, lead attorneys for the private and municipal plaintiffs in the case. (I don’t know how long that link stays up, or whether there is an on-line archive where it will be available long-term, but I think it would be fascinating in light of the actual opinion to go back and hear the justices’ questioning and the advocates responses again, in light of where the court came out on the various questions discussed.) The oral advocacy was backed up by powerful briefing and a flood of amicus briefs, documented in the lengthy appendix to the opinion listing every party and lawyer connected with the case on both sides. The list is worth studying.
