Commentary: California high court: Marriage v. domestic partnership

Daily Record (Rochester, NY), May 22, 2008 by Sara Stout Ashcraft

Last week the California Supreme Court issued a decision on whether California's designation of opposite-sex legal relationships as "marriages" and same-sex legal relationships as "domestic partnerships" is acceptable, In re Marriage Cases, S147000 (May 15). The court found that such differential designations are unconstitutional. The case involved six consolidated appeals, and the court, in a 4 to 3 decision, went into great detail to explain its position.

Issue

Up front, the court made it clear that the issue was very narrow: "It ... is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution." Essentially this case turns around the "separate but equal" question.

Nature and scope of the

'right to marry'

In its analysis, the court relied on previous California decisions on this issue, including Perez v. Sharp. 32 Cal2d 711 (1948). Perez held that despite long established statutory bans on interracial marriages, the laws violated "the fundamental constitutional right to marry." In the instant case, the court concluded, "under this state's Constitution, the constitutionally based right to marry properly 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 by the Legislature or by the electorate through the statutory initiative process."

The court further found, "in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibility to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, than an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis on which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples. ... We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple's constitutional right to marry under the California Constitution."

Standard of review

Rejecting the "rational basis" standard of review commonly applicable in determining whether a particular differential treatment violates the state's equal protection clause, the court found that the appropriate review standard is that of "strict scrutiny." Strict scrutiny was chosen, "because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we concludes represents -- like gender, race, and religion -- a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couples' fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple."

Strict scrutiny test

For a statute to stand up under a strict scrutiny review, "the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment no only is reasonably related to but is necessary to serve that compelling state interest."

The court dealt with this issue by first finding that, "the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all the rights and benefits that currently are enjoyed by married opposite-sex couples." Further, the court held that, "We cannot find that retention of the traditional definition of marriage constitutes a compelling state interest."

Conclusion

"Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite sex- couples, these statutes are unconstitutional." Clearly, the court knew that accusations of "legislating from the bench" would be forthcoming, and stated, "Although as noted at the outset of this opinion, we agree with the attorney general and the governor that the separation-of-powers doctrine precludes a court from 'redefining' marriage on the basis of the court's view that public policy or public interest would be better served by such a revision, we disagree with the attorney general and the governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying the definition from the constraints imposed by the California Constitution, or that the separation-of-powers doctrine precludes a court from determining that constitutional question. On the contrary, under the constitutional theory of checks and balances that the separation-of-powers doctrine is intended to serve, a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review." (Edited for readability.)