法律英语：105 Gay Marriage

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 3. Further, I do not intend to create an attorney-client relationship with any listener.

On May 15, 2008, in a 4-3 decision authored by Chief Justice Ronald George, the California Supreme 4 Court struck down California’s marriage laws that permitted marriage only for couples that consisted of a man and a woman. Several listeners have written in with questions about the opinion, its effect, and its significance. For example:

1. What exactly did [the Court] decide and why? What is strict scrutiny 5?

2. Do other states have to recognize a California gay marriage? 3. Will this case affect other states?

Today I will give a brief history of the litigation and answer these questions.

But first, a word from today’s sponsor, GoToMyPC:

Procedural History.

In February 2004, at the direction of Mayor Gavin Newsom, San Francisco began offering marriage licenses 6 to couples regardless of gender 7. About 4,000 same-sex couples were married before the California Supreme Court deemed those licenses invalid 8 on the ground that a mayor does not have the authority to change state law, but reserved the issue of whether the marriage laws were generally constitutional. In 2005, Judge Richard Kramer, struck down California’s marriage statute 10. The Court of Appeal reversed that decision by a 2-1 vote.

Issues:

There were several issues facing the Court. One major issue was the definition of “marriage” for constitutional purposes. In legalese, the issue was whether or not the marriage laws infringed 11 on a “fundamental right” under the California constitution. Generally, a fundamental right is one that is deeply rooted in society’s history and tradition, and implicit 12 in the concept of ordered liberty such that neither liberty nor justice could exist if they were sacrificed. Several past cases have recognized that the right to marry a person of one’s choice is a fundamental right. But, the Court had to decide exactly what the scope of this fundamental right included. That is, does the fundamental right to marry include the right to marry a person of one’s choice of the opposite gender only, or any person of one’s choice regardless of gender?

The Court held that the right extended to marry a person of one’s choice regardless of gender. The Court based this decision on several past decisions that confronted the definition of fundamental rights, and how courts have viewed them. For example, in Lawrence v. Texas, the U.S. Supreme Court struck down a law that prohibited homosexual sodomy. The right to engage in intimate relationships had been recognized as a fundamental right, but the state of Texas argued that this fundamental right did not include the right to engage in homosexual intimate relationships. The U.S. Supreme Court rejected the logic 13, holding that the fundamental right at issue could not be so narrowly defined as the right to homosexual intimacy 14, but more broadly to include the right to intimacy with another person.

In the gay marriage case, the California Supreme Court used the same logic to conclude that the historical definition of marriage as between a man and a woman was too narrow, and the fundamental right at issue included the right to marry any person of one’s choice. One of the parties in the case argued that the reason marriage was to be understood as between a man and a woman was because marriage is intended to produce children and families. The Court rejected this argument on the grounds that a married couple is not required to have children, the state cannot deny a marriage license 2 to an infertile 15 couple, and that any couple can adopt anyway.

The next main issue to be decided 16 was whether the marriage statutes 17 violated the Equal Protection Clause of the California constitution, which generally requires the state to treat all groups of people equally.

Before determining whether there was a violation 18, the Court had to decide what standard of review to use. A standard of review refers to the level of scrutiny that a Court will use to examine a statute, and two are generally used in California Equal Protection Clause cases: rational basis and strict scrutiny. If a court applies rational basis, then a law is presumed valid 9 and upheld so long as the distinctions drawn 19 by a challenged statute bear some rational relationship to a conceivable legitimate 20 state interest. Under strict scrutiny, the law is presumed invalid, and the state bears the burden of establishing not only that it has a compelling interest which justifies 21 the law but that the distinctions drawn by the law are necessary to further its purpose. The point is, it is much easier to get a law struck down if you can convince a court to apply strict scrutiny.

In determining what level of scrutiny applies, the court looks at what distinction the law draws, and whether the group is a “suspect classification,” which refers generally to a group that requires extra protection under the law. In past decisions, courts had determined 22 that gender, religion, and race were suspect classifications. So, a law that gave women a legal right, but not men, would be subject to strict scrutiny.

The Court determined that the marriage statutes made a distinction based on sexual orientation 23, but no court had ever decided that sexual orientation should be a classification that requires additional protection. The Court held that sexual orientation is a classification that requires additional protection due to the past discrimination against homosexuals, the fact that sexual orientation is a core part of personhood, and that sexuality has no bearing on whether an individual can be a productive member of society.

This conclusion, that sexual orientation is a suspect classification triggering strict scrutiny, is perhaps the most legally important part of the decision. The California Supreme Court is the first in the country to so hold.

Having concluded that strict scrutiny was proper, the Court held that the marriage statutes did not pass the difficult standard. In practice, most laws that are subject to strict scrutiny are struck down.

So, what does all this legal mumbo jumbo mean? It means that California must now offer marriage licenses to all couples who qualify, regardless of the gender of the two members of the couple. It also means that any California law that makes a distinction on the basis of sexuality is subject to strict scrutiny, and is more likely to be struck down.

The most pressing question I have received is whether other states must now recognize a California gay marriage – the answer is probably no. No state is required to recognize all marriages from another state. Most states choose to do so with respect to heterosexual marriages. Massachusetts has granted marriage licenses to gay couples since 2003, and states generally (exceptions being New York, New Mexico and Rhode Island) have not been forced to recognize that union simply because Massachusetts does. It also does not mean that gay married couples will be recognized for federal purposes, as the federal Defense 24 of Marriage Act already limits marriage to one man and one woman. As to the effect of this decision in other states, we will have to wait and see. The California Supreme Court is not binding 25 authority on other state courts, but some courts might be persuaded by the logic in the opinion.

The other pressing question is whether this decision can be overturned. Well, the U.S. Supreme Court cannot likely overturn the decision because the California Supreme Court decided the issue under the California constitution, and the California Supreme Court is the highest arbiter 26 of issues of California law. However, California has a ballot 27 initiative system under which an amendment 28 to the California Constitution can be passed that expressly indicates that marriage is reserved for opposite-sex couples. If the amendment passes, then the opinion would effectively be reversed. The Court in this case struck down statutes because they violated the constitution. If the constitution were amended 29, then the old marriage statutes would be most likely constitutional. Californians will simply have to wait until November to see what happens at the ballot box.

I would like to end by noting that this brief episode does not cover everything contained in the 172-page opinion issued by the Court, but only touches upon some of the highlights. If you are interested in some very strong legal arguments proposed by both sides of this issue, please read the entire opinion.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 30 Life.

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