Briefing Report: Supreme Court Creates a New Right - Gay Marriage

Wednesday, May 28, 2008

The Court Abrogates Marriage Initiative by manufacturing a constitutional right to gay marriage:

"[T]o the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."

On May 15, 2008 Chief Justice George and three of his colleagues discovered a right of gay marriage in the California Constitution. This report attempts to look at some profound errors in the court’s opinion and their implications. This report presumes the validity of the Judeo-Christian tradition and the American tradition of marriage.

The court’s reasoning in a nutshell

The California Constitution's Due Process Clause and Privacy Clause secure a right to marry, which extends to same-sex marriages as well as opposite-sex marriages. Thus, a limitation on marriage to opposite-sex couples must be reviewed under strict scrutiny, which must be very narrowly tailored to a compelling state interest. The California Constitution's Equal Protection Clause treats sexual orientation as a suspect classification. Any discrimination against gays and lesbians thus must be reviewed under strict scrutiny, and the opposite-sex-only rule is indeed such discrimination. The opposite-sex-marriage-only rule does not constitute presumptively impermissible sex discrimination, only sexual orientation discrimination. The ban on same-sex marriage violates strict scrutiny because there is no compelling state interest to limit marriage to a man and a woman. Of course, using the strict scrutiny test is pretty much a foregone conclusion. It is a test, which allows the court to decide how it wishes.

Summary of the legal objections to the opinion

In Proposition 22, the People adopted Section 308.5 of the Family Code which stated, “Only marriage between a man and a woman is valid or recognized in California.” More than 60% of the voters approved this change in March, 2000. Under California law, the California Legislature has no authority to, by itself, reverse -- even with the Governor's approval -- an initiative statute, such as the California ban on same-sex marriage. Reversing such an initiative statute through the legislative process requires a subsequent popular vote. The Legislature may at most place the amendment on the ballot.

In his dissenting opinion, Justice Baxter stated “[n]othing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage -- an understanding recently confirmed by an initiative law -- 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. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.” (Emphasis supplied).

He adds, “[t]he majority's mode of analysis is particularly troubling. The majority relies heavily on the Legislature's adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. I cannot subscribe to the majority's reasoning, or to its result.”

Justice Baxter presents the issue simply by writing “The question presented by this case is simple and stark. It comes down to this: Even though California's progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy, they reserve the label “marriage” for opposite-sex legal unions? I must conclude that the answer is no.”

Chief Justice George’s opinion denied the longstanding tradition that marriage is between a man and a woman

Among American jurisdictions, only the high court of Massachusetts has previously found or confirmed in its state Constitution a right of civil marriage to partners of the same sex. Several years earlier, in Baehr v. Lewin, the Hawaii Supreme Court had held that the denial of marriage licenses to same-sex couples was subject, under the state Constitution, to strict scrutiny, and had remanded the cause for further proceedings on the issue whether strict scrutiny was satisfied. However, before the lower court's “no” answer could be reviewed on appeal, the voters ratified a state constitutional amendment giving the Hawaii Legislature the right to reserve marriage to opposite-sex unions, a step that body had already taken. Meanwhile, a substantially greater number of courts have rejected claims of state constitutional rights to same-sex marriage: Maryland, New York, Washington, Minnesota, Indiana and the District of Columbia. Other courts (New Jersey and Vermont) have found a right to same-sex civil union with benefits of marriage, but concluded that label issue is premature.

Indeed, federal statutory law, the Defense of Marriage Act, provides 1] that no state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state and 2] the Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

The court violated the separation of powers

The court’s opinion creates a new constitutional right without reference to any provision of the constitution that would so provide. In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute unless the initiative measure itself so provides. Family Code Section 308.5, enacted by the People as Proposition 22, contains no such provision. Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians—including domestic partnership rights which, under section 308.5, the Legislature could not call “marriage”—the Legislature has given “explicit official recognition” to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5.

The court makes constitutional rights out of statutes

The majority opinion grants the Legislature, indirectly, a power it does not otherwise possess to thwart the People's express legislative will. Under article II, section 10, subdivision (c) of the California Constitution, “[t]he Legislature may amend or repeal … an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.” Family Code section 308.5, adopted by Proposition 22, includes no provision allowing its unilateral repeal or amendment by the Legislature.

But Chief Justice George finds that the Legislature's adoption of progressive laws on the subject of gay and lesbian rights, including the Domestic Partnership Act, makes it impossible not to recognize a constitutional right to same-sex legal unions with full equivalency to opposite-sex legal unions. The majority decides that these enactments (including domestic partnership legislation), requires the invalidation of Family Code section 308.5. Somehow, according to Chief Justice George, the Legislature's own actions have, by indirection, caused this initiative statute to be erased from the books. This kind of ruling represents the nadir of legal analysis.

The majority violated the constitution by relying on legislative statutory acts to find a constitutional right

The People must amend the Constitution; the Legislature cannot. Chief Justice George suggests that the Legislature can accomplish an amendment indirectly, whether it intends to do so or not, by reflecting current community attitudes in the laws it enacts.

The notion that legislation can become “constitutionalized” is troublesome for several reasons. As indicated above, it violates the constitutional scheme by which only the People can amend the state's charter of government. It abrogates the legislative power to reconsider what the law should be as public debate on an issue ebbs and flows. And, for that very reason, it may discourage efforts to pass progressive laws, out of fear that such efforts will ultimately, and inadvertently, place the issue beyond the power of legislation to affect.

The opinion changes in other marriage laws more likely

The bans on incestuous and polygamous marriages are ancient and deep-rooted. Strong policy considerations and moral laws support maintaining them. As a society, we detest such conduct. It appears ridiculous that our laws would not forever prohibit them. However, in this opinion, Chief Justice George and his colleagues invalidate, out of nothing, an initiative statute confirming the equally deep-rooted assumption that marriage is a union of partners of the opposite sex. They rely arrogantly on their own feelings about contemporary community values to amend our Constitution with an expanded definition of the right to marry that contravenes express statutory law.

The majority’s approach creates the opportunity for further judicial extension of this manufactured “constitutional right” into dangerous territory. How soon will this or another activist court rely on the majority's conclusion to decide, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified? Once the law is abandoned for feelings, there is no limit on judges or the harm that they can inflict on society.

There is hope for reversing the court’s opinion. Senator Hollingsworth and others have proposed, circulated and submitted signatures for a limit on marriage in the California Constitution. The proposed initiative would amend the Constitution to provide “Only marriage between a man and a woman is valid or recognized in California.” According to the Secretary of State’s website the submitted signatures are pending verification.

For more information on this report or other Judiciary issues, contact Mike Petersen, Senate Republican Office of Policy at 916/651-1501.