Bench Memos

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California Marriage Ruling


Here’s my quick stab at a selective (but, I think, neutral) summary of California chief justice Ronald M. George’s 121-page majority opinion, which was joined by associate justices Kennard, Werdegar, and Moreno:


1.  The issue in California differs from that addressed by other state courts because California has in recent years enacted “comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges” as marriage.  (Emphasis added.)  Thus, the issue here is whether the state constitution prohibits identical statutory schemes for opposite-sex and same-sex couples, one designated “marriage,” the other “domestic partnership.”  (2-4; see also 36-47 & 42 n. 24 on virtual equivalence of marriage and domestic partnership.)


2.  The implied state constitutional right to marry must be understood to encompass “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.”  These rights include “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 marriage.”  (Emphasis in original.)  The state constitution must be interpreted to guarantee this right “to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”  Giving the name “marriage” to the relationship entered into by opposite-sex couples and the name “domestic partnership” to that entered into by same-sex couples violates the state constitutional right to marry.  (6-9; 49-79.) 


3.  The different names also violate the state constitutional equal protection clause.  Strict scrutiny applies because the classification is based on sexual orientation.  California doesn’t have a compelling state interest in the differential names, nor is the difference necessary to serve what interests California does have.  (9-12; 82-119.)


The subsidiary arguments are too lengthy to summarize; I’ll leave it to interested readers to wade through them.


From associate justice Baxter’s dissent (joined by associate justice Chin):  “Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage … is no longer valid.  California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow.  If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means.


From associate justice Corrigan’s separate dissent:  “The principle of judicial restraint is a covenant between judges and the people from whom their power derives.…  It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.…  If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

Tags: Whelan


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