Conservative Donnybrook

A story in today’s Los Angeles Times online edition carries the title: “California chief justice says same-sex marriage ruling was one of his toughest.” It’s not surprising considering the fact that it wasn’t based on any law (or more to the point, was contrary to existing precedent and the unambiguous will of the people). It is always difficult to fabricate new rights from thin air with no support in the law. In a 121 page decision filed on Friday, the “moderate Republican” chief justice of the Supreme Court of California wrote that:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.”

The problem that the chief justice wrestled with stemmed from the fact that California already provides “domestic partnerships” for gay couples replete with all of the rights and privileges that married heterosexual couples enjoy. The only real difference between the two is terminology. In fact, because of California’s Domestic Partnership Act, Proposition 22 merely reserved to traditional marriage the label “marriage.”

Nonetheless, this minimal disparity in terminology was seized upon by the supreme court of California as an occasion for judicial activism. The plaintiffs claimed that the difference in terminology placed a stigma on their relationships, relegating them to the status of “second class citizens.” Domestic partnerships were insufficient for the radical gay activists who demanded that traditional marriage be dispensed with and redefined so as to include their particular sexual perversions.

The court responded by finding that

the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

Instead the court re-characterized the issue. The Court of Appeal had previously ruled that these cases did not concern, as the plaintiffs claimed the “right to marriage,” but rather the “right to same-sex marriage.” The Court of Appeal further concluded that no such right existed and that case law and statutory history regarding marriage directly contradicted such a notion. However, the Supreme Court of California accepted the plaintiffs’ packaging of the issue and concluded that at issue was the right to marry and that homosexuals were being denied that fundamental right on the basis of their sexual orientation, which the court granted the status of suspect classification. The end result was that by shoehorning the issue into the right to marry, which has frequently and properly been considered a fundamental right of all Americans, the Court was able to subject the proposition to strict scrutiny. As a practical matter, any time a piece of legislation can be found subject to strict scrutiny, the case is closed and the law will be overturned – it only remains to exercise the court clerk’s to perform whatever judicial jujitsu is required to make the ruling sound legitimate. No law ever survives strict scrutiny.

Interestingly, the court’s opinion begins by stating,

From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.

Yet, in one ruling, the court then abrogates 159 years of well-settled precedent. In fact, the Supreme Court of California itself ruled that:

the marriage relationship “is one ‘by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge toward each other the duties imposed by law on the relation of husband and wife’ ” (Mott v. Mott (1890) 82 Cal. 413, 416), and that the marriage contract is one “ ‘by which a man and woman capable of entering into such a contract mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and his wife.’ ” (Kilburn v. Kilburn (1891) 89 Cal. 46, 50.).

Under California law, a proposition initiative passed by the general electorate is treated differently than other law, which is passed by the legislature. In order for the legislature to modify or amend a proposition initiative, it must be resubmitted to the electorate for ratification. Unless, that is, one can get the court to do it.

The people of California unambiguously passed Proposition 22, which provided that all marriages, whether entered into in California or elsewhere, are valid only if they are between a man and a woman. The court then goes on to state:

Although California statutes always have limited and continue to limit marriage to opposite-sex couples, as noted at the outset of this opinion California recently has enacted comprehensive domestic partnership legislation that affords same-sex couples the opportunity, by entering into a domestic partnership, to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples. The recent comprehensive domestic partnership legislation constitutes the culmination of a gradual expansion of rights that have been made available in this state to same-sex couples who choose to register as domestic partners.

The implication, picked up in one of the dissents, is that because the legislature had passed the Domestic Partnership Act, there was no longer any rationale for denying marriage to homosexuals. This in itself, should provide a cautionary note to other states that consider the passage of similar benefits for homosexuals. The risk is quite real that their court’s will take the passage of such legislation as license to redefine the whole of marriage as it is traditionally understood. One could argue that the passage of the Domestic Partnership Act negated the need for a redefinition of marriage considering that, at least in California, every right extended to married couples had been extended to domestic partners under the Act.

Homosexuals therefore were not denied any right that married persons enjoy. Nonetheless, they claimed they were denied the right of marriage. This is demonstrably false as any homosexual man could go to any magistrate in the State of California and marry a woman at any time – just as heterosexual men can. They are clearly NOT denied the right to marry. What they are denied is the right to same-sex marriage. In this sense, the Court of Appeal got it exactly right and the Supreme Court got it exactly wrong. And they got it wrong precisely so they could subject the law to strict scrutiny – all of the precedent was contrary to their position and the only way to overturn this law would be to find that this law violated some fundamental right. In order to make the issue fit the conclusion they wanted, the right needed to be defined as broadly as possible.

In an act of blatant disingenuousness, they found the excuse in a case called Perez v. Sharp, 32 Cal.2d 711 (1948). The decision in Perez ended one hundred years of discrimination against couples of differing races. The court pointed to the ruling in Perez and noted that the issue in that case was the right to marry – not the right to interracial marriage. Therefore, they “reasoned,” this case should be about the “right to marry” and not the “right to same-sex marriage.” Except that ignores one glaring difference between the two cases. In Perez two heterosexual people who otherwise were eligible to marry one another were being denied the right because they were of different races. In Friday’s decision, the two contemplating marriage are not otherwise (but for some immutable characteristic) eligible to marry each other.

Finally, the court took on the conclusion of the Court of Appeal, which had ruled that whether homosexuality was an immutable characteristic like sex, race, or ethnicity was a subject which was open to debate. The Court of Appeal declined to rule on the issue absent guidance from the Supreme Court and left the matter at that. However, the Supreme Court seized upon this issue and found that there is no requirement that a characteristic be immutable in order to provide protection against discrimination. The court used as an example a person’s religion, which may be changed during a person’s life – perhaps many times. Of course, the problem with this example is that the constitution explicitly states that the government may not discriminate based upon a person’s religion – precisely because it is not immutable. Those characteristics which are immutable are not spelled out because they are automatically protected. If the State wishes to protect homosexuality (and sexual orientation is not immutable), it need only add it as a protected class in its enumeration of rights.

In the end, the court’s substitution of “the right to marry” for the real issue “the right to same-sex marriage” was an act of judicial legerdemain which enabled the court to subvert the law and the will the of the people in one stroke.

The question remains: If Californians manage to amend their constitution, will that be an effective barrier against further judicial tyranny?

A copy of the opinion may be found here (PDF).