- The Washington Times - Friday, May 23, 2008

On May 15, 2008, a divided California Supreme Court ruled that marriage is a constitutional right for all couples. The court therefore ordered two sections of state marriage law struck down so that marriage would become available to gay couples. Previously, gay couples could only obtain domestic partnership licenses.

One of the stricken sections - 308.5 - has special importance: The law was placed on the books because a majority of voters passed it in 2000, as Proposition 22. California lawmakers are prohibited from amending or repealing section 308.5 without approval from voters; however, the court ordered 308.5 stricken to comply with its findings about gay couples’ rights to marry.

From the majority opinion in In re Marriage Cases, written by Chief Justice Ronald M. George with Associate Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno concurring:

What was the legal issue before the court?

“The question we must address is whether…the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.”

Is there a constitutional right to marry?

Yes. “Although our state Constitution does not contain any explicit reference to a ‘right to marry,’ past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution.”

Does this right to marry extend to gay couples?

Yes. “In light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society - the California Constitution properly must be interpreted to guarantee this basic civil right to individuals and couples, without regard to their sexual orientation.”

Does the right to marry include the right to choose one’s partner?

Yes. “These core substantive rights [to marry] include, most fundamentally, 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.”

Isn’t it OK for state lawmakers to set up a system in which heterosexual couples marry and gay couples get domestic partnerships?

No. “[P]ermitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage…Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children…Third, because of the widespread disparagement that gay individuals have historically faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of marriage of opposite-sex couples.

“Finally, retaining the designation of marriage exclusively for opposite-sex couples…may well have the effect of perpetuating a more general premise - now emphatically rejected by this state - that gay individuals and same-sex couples are in some respects ‘second-class citizens’ who may, under the law, be treated differently from, and less favorably than, heterosexual couples or opposite-sex couples.”

Now that Family Code sections 300 and 308.5 have been struck as unconstitutional, what is the next best step?

Allow gay couples to marry. When equal-protection violations are found, a court must determine whether the remedy is to extend the treatment equally or withhold it equally. “[T]here can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state’s general legislative policy and preference.”

Excerpts from a dissenting opinion written by Associate Justice Marvin R. Baxter with Associate Justice Ming W. Chin concurring:

How is the majority opinion flawed?

“[T]he majority violates the separation of powers, and thereby commits profound error…

Did the majority opinion overstep its bounds?

Yes. “[A] bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.”

Is there a constitutional right to marriage?

No. “Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.”

Does the court have the right to redefine marriage?

No. “It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice…I find no persuasive basis in our Constitution or our jurisprudence to justify such a cataclysmic transformation of this venerable institution.”

Should the court have ordered section 308.5 stricken without voter approval?

No. “I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power.”

Excerpts from a dissenting opinion written by Associate Justice Carol A. Corrigan:

Does the court have the right to redefine marriage?

No. “The voters who passed Proposition 22 not long ago decided to keep the meaning of marriage as it has always been understood in California. The majority improperly infringes on the prerogative of the voters by overriding their decision. It does that which it acknowledges it should not do: it redefines marriage because it believes marriage should be redefined.”

What is the remedy?

“Four votes on this court should not disturb the balance reached by the democratic process, a balance that is still being tested in the political arena…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.”