May 20, 2008

Dale Carpenter on the California Marriage Decision

The Volokh Conspiracy's go-to guy on issues tied to same-sex marriage has weighed in on the California Supreme Court's recent marriage decision (here). I am not a lawyer, nor do I play one on tv, but I'd agree that these points appear key (I imagine Ryan and maybe Moon will want to comment on this eventually):

A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted all of the substantive rights of marriage to gay couples under the state's domestic partnership laws. The California court emphasized this point throughout the opinion ...

First, the California court held that the fundamental right to marry includes the right of same-sex couples to marry, just as it concluded in 1948 that the right to marry includes the right of inter-racial couples to marry, not that there is a fundamental right to "inter-racial marriage." Op. at 51. The California court did not hold that there is a new and separate fundamental right to something called "same-sex marriage," a nuance some critics of the decision have missed. This holding is a first for a state high court in marriage litigation. Most of the courts so far have missed the distinction and have assumed that the claim at issue was for recognition of a new fundamental right to same-sex marriage and then, having under-theorized the issue, they've gone on to reject the "new" right ...

The California court concludes that the state’s legislative domestic-partnership enactments have not created a new constitutional right but are a confirmation and official recognition of an underlying truth about the equal needs and capacities of gay couples and families. So even if California had not enacted the domestic partnership laws for same-sex couples, the California court would have concluded under its own logic that they were included within the fundamental right to marry ...

Second, the holding that excluding gay couples from marriage is sexual-orientation discrimination and that such discrimination cannot survive strict scrutiny also does not depend on whether the state previously enacted domestic partnership laws. If the substantive right of marriage, and the dignitary interest in having the relationship called "marriage" by the state, cannot be denied on the basis of sexual orientation it should not matter that the state has left gay families completely without legal protection or has seen fit to protect them in all substantive ways but withheld the title marriage. Indeed, if the state had refused to give gay couples any protection under state law, or had given them only very little protection, the affront to equal protection principles under the court's reasoning would be even greater. The equal protection holding, quite apart from the fundamental-right holding, has potential to influence sister state courts in future marriage litigation.

Of course the Court's decision that sexual-orientation discrimination should be subject to heightened scrutiny might be the most important part of this ruling. But Carpenter doesn't go into that at length, and not being an expert on that I feel unqualified to comment on it.

Posted by armand at May 20, 2008 11:01 AM | TrackBack | Posted to Law and the Courts


My recent "A" in sexual orientation and law and I will agree with all the points he makes on the reading of the fundamental right to marriage. The court did re-apply the existing right to marriage, not craft a new one to same-sex marriage.

I'll also agree with Armand that the most novel aspect of the holding was recognizing gays as a suspect class and applying heightened scrutiny. No one has done this before. They could have just as easily struck down the laws as "irrational" like Massachusetts (although, I'll confess that I don't think that the Mass method is particularly intellectually coherent or grounded in precedent). But it didn't, it gave gay people the same level of protection as racial minorities - so under this standard, there was no way to rule against gay marriage.

I didn't read all of the posting on Volokh, but I think he misunderstands why the court keeps bringing up the existing domestic partnership laws. The court makes clear that it considers DP and marriage to be legally equal and is trying to decide if this separate but equal regime violates the constitution. It even cites to the advisory opinion given by the MA Supreme Court on Civil Unions v. Marriage. Obviously the court says that marriage is necessary. But considering the heightened scrutiny, it would have been the same result if CA conferred no rights at all. Gay people had a fundamental right to be married AND a right not to be discriminated against without a compelling state interest (and some other technical legal jargon for the standard).

This opinion was not limited at all. It was miles ahead of anything else out there.

Posted by: ryan at May 21, 2008 12:48 AM | PERMALINK

Ryan, do you remember the details of the NJ decision? I don't recall heightened scrutiny coming in there, but I remember it being pretty broad in most other particulars. I'd look it up myself -- I know I commented at some length on the decision here -- but I have zero time.

Posted by: moon at May 21, 2008 01:44 PM | PERMALINK
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