I was reading the public comments to the LA Times article on this. Some opinions out there are pretty stupid and scary. For example, people argue that the court is overturning the will of God and that the court should not be able to trump the voters … Adam & Steve, blah blah blah. One person said people may call him a homophobe, but he’s ok with that because apparently, God is a homophobe too.
Anyway, there was one argument that I haven’t gotten my head around yet. That argument is that the same reasoning supporting SSM can be used to legalize polygamy, incestuous marriages, and marriages to minors.
The minor’s marriage issue seems easy to defuse because minors are not deemed capable of consent. However, what about polygamy and incestuous marriage between informed and consenting adults? Is this the next step?
If marriage is a fundamental right, how would anti-polygamy and anti-incest laws survive strict scrutiny? I don’t know, especially in light of the ruling of the court that (1) tradition is not a good guide to define people’s constitutional rights; and (2) just because a person has been historically denied a right does not mean the person has no right.
That’s a fair question, but I think the answer is relatively simple. As has been noted, a linchpin of the decision was that sexual orientation is a suspect classification. I don’t see how polygamists, etc. could claim similar status. Now, if the law said polygamy or incest is okay for certain groups but not for others, that would be parallel. But that’s not the law.
In 30 days, California should embark on a <barry white>Summer Of Love</barry white>. Every matched set of registered domestic partners, everyone who has pulled hair out organizing their commitment ceremony…we all get married.
And while we’re legally married we file for official adoption of our children, and we file paperwork for every other thing we can while we’re legally married, and we choke the system with paperwork, demanding changes in policy.
The difference between SSM and incestual marriages, I think, is that the prohibiting the latter simply restricts you from marrying a very few members of your immediate family, and also has some benefit to the community in terms of preventing genetically deficient offspring. Preventing SSM on the other hand, prohibits people from marrying anyone in the pool of people they could possibly be attracted to. It is essentially taking away their right to marriage, if you believe such a right exists.
We just changed that in Florida. It used to be that a simply majority could pass a constitutional amendment. Then we voted on an amenment requiring 60% for a constitutional amendment to pass. It passed with 54%.
So it wouldn’t have passed under the new standard, but it still has the force of law…
That was more ducking than ruling (but it’s binding, yes, I know - for now). Perhaps a future Court (not this one) would find that there is indeed “substance” to a future suit similarly based on equal protection, or that they couldn’t avoid ruling on a full faith and credit case.
Isn’t that *still * the next obstacle for the anti-gay movement? If so, is it really any more likely to cuceed now than it was for the 2 previous times the Lege voted No?
Oh, and it looks like it’s going to be a bit harder for the anti-gay faction to dismiss this one than it was for the MA ruling. The CA court is mostly conservative Republicans, and they *still * ruled for equal protection. But we can still expect to hear as much about “San Francisco liberals” this election season as we heard about “Massachusetts liberals” the last one.
We’ll also hear much about only a one-vote majority in each case, but not about the minority opinions being essentially procedural, not substantive. In both cases, the minorities *endorsed * the majority reasoning; they simply preferred to duck their responsibilities to decide constitutional questions and instead dish off the matter to the legislatures. Not one Justice on either court has opined that the plaintiffs were actually wrong.
Does anyone think the case might have gone differently if CA did not recognize any benefits for gays? It seems like the court said you can’t set up two different systems, but what if there was no other system at all, and the state simply didn’t recognize homosexuality as a “legitimate” lifestyle? Just curious.
I don’t think that is the entire linchpin. The court said strict scrutiny applies because (1) the statute infringed upon a fundamental right of marriage; and (2) sexual orientation is a suspect class. Each of those reasons, standing alone, would give rise to strict scrutiny.
If the court can strike down the “traditional” notion of marriage being between a man and woman, why couldn’t or shouldn’t the court also strike down the “traditional” notion that marriage is to be between only two people? Also, if choosing one’s life partner is a fundamental right and everyone deserves equal dignity and respect, why not permit incestuous marriages?
I am not advocating any position here. This is an exercise in logic. Perhaps there is no compelling government interest in prohibiting polygamy and incestuous marriage.
I don’t think this rationale survives strict scrutiny. The state would have to show a compelling government interest in denying someone the right to marry an immediate family member. The law also has to be narrowly tailored to meet that compelling government interest. In the incest case, if the state uses the risk of birth defects in incestuous couples as its government interest, the state could narrowly tailor the law to simply prohibit incestuous spouses from reproducing biologically (i.e., but they could still adopt). A law prohibiting them from marrying would be unconstitutionally broad.
No, the initiative does not have to go to the legislature first. The propopnents can get the issue on the ballot by collecting enough valid voter signatures. That is what they are attempting to do now.
My understanding is that the court said same-sex couples may marry, and the fact that a parallel system of “domestic partnership” exists does not vitiate the fundamental right of “marriage.” In other words, the state cannot use domestic partnership law to circumvent the right to same sex marriage. The fact that a separate system exists did not affect the underlying fundamental right of marriage; the court’s ruling would have been the same even if domestic partnership law did not exist.
Has sexual orientation been a strict scrutiny classification in California prior to this ruling? Because that’s really what seems to be the REALLY BIG DEAL about this ruling. The marriage aspect is very nice, and I’m very, very happy to see it happen, but the matter-of-fact acceptance by a generally conservative court of sexual orientation as a strict scrutiny class seems to be a genuinely fundamental shift in jurisprudence.
I have been thinking about this point as well. It is getting lost in the hype about marriage. This was a landmark case in that regard. Even if the anti-marriage amendment passes in November, this case will continue to support sexual orientation as a suspect class.
Yeah, that seems to be key. Maybe one of our CA lawyers will pop into this thread and enlighten us.
On the polygamy issue, I don’t see how the court could reject polygamy and still stay logically consistent on this issue. Unless… sexual orientation has attained the strict scrutiny level because the government has taken many steps to ensure that gays are not discriminated against, and so there is a legislative history of trying to protect gays. Not so for polygamists. But IANAL, so maybe that’s all just bullshit.
Cite for the comment that the California Supreme Court is mostly conservative Republican. Republican majority, yes. Convervative, hardly. They are moderates at best.
Wait, was sexual orientation the subject of the ruling at all? Gay people could always marry, just only persons of the opposite gender. I thought the issue was that the gender-specificity itself was the suspect classification referred to in the ruling. The M+F definition of marriage was making the enrollment opportunity for marriage to any given woman a government-sponsored men’s-only club (and vice-versa for women) - wasn’t that the problem? (Or am I totally confused here?)
Actually, the majority opinion specifically rejected the sex discrimination argument and ruled based on sexual orientation.
The precedent in California had been that sexual orientation is not a suspect class. This case was the first to say it is a suspect class.
As Bearflag said, even if polygamists and people interested in incest are not a suspect class, the infringement of their right to create their own family unit, or however the court put it, would trigger strict scrutiny under the reasoning of this decision. If it got up to the Supreme Court anytime soon, though, I bet they would find a way out of it.
Depends. If you argue that polygamy is a lifestyle choice, and not an unchangeable part of your being (like being gay), then I don’t see why not. But that would be a difficult argument to make if it were based on scientific evidence. Still, until we determine that this case set the precedent for strict scrutiny, I don’t think we need to conlclude what you are concluding.
Yes. Not only in California, but this ruling is the first to apply the label of suspect class and making sexual orientation issues subject to strict scrutiny. This could have huge implications for cases across the country.
I generally trust this source, but I can try to find another cite for it since it’s just a blog and it doesn’t cite a source.
I’m a little unclear what you are referring to when you say “I don’t see why not,” so I’ll just say stuff and we’ll see if I’m telling you anything you didn’t already know or making any sense at all (I just finished my 1L course in ConLaw, so I’m hardly an expert on the California Constitution.)
All the stuff about homosexuality being a choice, is relevant to whether homosexuality is a suspect class for the purposes of equal protection. So polygamy being a lifestyle choice would be an argument against polygamists being members of a suspect class. And if they aren’t then their claim of discrimination won’t get strict scrutiny under an equal protection clause.
But AFAIK it’s irrelevant to a fundamental right claim. This opinion seems to suggest that there is a fundamental right to create a family, to choose who you want to start a family with, etc.
It seems to me that this would mean generally that people have a fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by married couples.
Not allowing polygamists to marry their partners would seem to impinge on this interest. Which would trigger strict scrutiny if the interest is in fact a fundamental right.