California Marriage Cases - Speculation and Discussion

Great Debates
81

Immutability is relevant, but it is not a deciding factor. I’ll try to find my notes on this.

Okay, it looks like relevant factors are a long history of discrimination, political powerlessness, and immutability. Courts also ask are if it is a “discrete and insular” minority, which overlaps with the aforementioned factors. There’s probably other stuff, too, but I’m just skimming through my notes.

The court explains its reasoning for finding sexual orientation suspect:

Immutability is definitely talked about in US Constitutional equal protection jurisprudence, but maybe it isn’t relevant in California ConLaw. I wonder if California has anything like intermediate scrutiny, because here it seems to treat all suspect classes on the same level.

82

(Something to keep in mind, any of my questions or arguments come from purely a laypersons viewpoint. I have exactly zero formal training or study in the law)

83

Hey, I have only incrementally more training. I am wielding just a little knowledge in a potentially dangerous way.

84

I’m much happier about the California decision than I was about Massachusetts’ Goodridge decision.

While I still say that the best way for this to come about is via the legislature, I thought (and said at the time) that Goodridge was fairly described as judicial activism. The reason for this is it applied the rational basis test, but then simply declared that there was no rational basis under the law for forbidding same-sex marriage. This is simply not correct - from a legal perspective. (I well recall the endless debates that arose from people spouting indignantly about how irrational they found bigotry, etc etc). The fact remains that the rational basis test, if fairly applied, should uphold a state’s law in this matter. That it didn’t in Massachusetts was strong evidence that the judges sought a result, period – they wanted to make a social statement.

In contrast, the California decision says that the proper standard is strict scrutiny. Under this standard, I believe they are absolutely correct in invalidating laws that restrict marriage to man/woman.

This may seem like a ridiculous distinction – after all, both are court rulings that strike down state laws and impose their own results. But the PROCESS is key. A court that claims no rational reviewer could find any support for anti-SSM laws is making a social statement, not an honest legal one. A court that says sexual orientation is a protected class, and laws creating classifications thereunder are reviewed with strict scrutiny is (assuming this decision is a matter of first impression) pretty much simply doing what courts should do: deciding how to apply the law.

So… not the best way to get there… but they did it the right way.

85

But isn’t the making of sexual orientation a protected class itself a social statement? Or, as I mentioned above, is the court relying on legislative history protecting sexual orientation to reach that decision?

Also, I’m not sure what you meant by “assuming this decision is a matter of first impression”. What does “first impression” mean in that context (I assume it’s a legal phrase)?

86

Are you *still * taking the position that (A) there is no such thing as the spirit of the law, distinct from its letter, and that (B) there is no court charged with upholding it, in fact the opposite?

That looks like the only way you can support a claim that this court was being dishonest.

87

A matter of first impression is a legal phrase meaing, “we’ve never had to consider this question before.” If there was a boatload of existing case law placing sexual orientation in the category of rational basis review, and THEN the court decided to change up with this case, we’d be back to judicial activism. But so far as I know (and no expert, I, on California law) there isn’t.

And that’s the answer to your first question. If the courts have never considered whether sexual orientation is a suspect class entitled to strict scrutiny before, then they have to make that decision… in other words, it’s obviously a classification; it obviously has to be scrutinized somehow. Their job is to decide what the California constitution meant to protect with its equal protection language.

In Massachusetts, they left alone the previous case law that set sexual orientation subject to rational basis review, and just declared that it doesn’t pass that test. Any fair application of the rational review process reaches the opposite conclusion. Here, they set the bar higher (and correctly, in my view) in the first place.

88

OK, but how do they go about determining the level of scrutiny? Do they look at what the legislature has done to protect that class? What informs them that it should be strict, intermediate or rational basis?

89

The text is ambiguous. Obviously it’s ambiguous, since we know the legislature did not intend to prohibit all classifications under the law. If it were otherwise, felons could sue for being denied the right to own a firearm, since they’re being treated differently under the law from non-felons. We never interpret text to produce an absurd, contradictory, or impossible result.

So what a court must do is look to the legislative history, and to similar acts of legislature, in order to divine the intent of the provision. For the Fourteenth Amendment, passed in the wake of the Civil War in an obvious effort to force states to recognize the rights of newly-freed slaves, the answer was clear: the intent of that clause was primarily to target racial classification. These classifications garner strict scrutiny; other classfications garner rational basis review. (Gender classifications as “intermediate” came along later on).

For the California constitution, I don’t know any of the history – but I presume the Supreme Court of California does.

90

Rational basis, strict scrutiny, protected classes…all bullshit neo-legal terms which have no basis in textual or original theory of the constitution. Activist excuses to find a supposed “right” of any new idea that comes down the pike.

I’m not opposed to new ideas or evolving thoughts. Just don’t tell me that the 14th amendment, ratified in 1868 had the idea of same sex marriage in it. It did not…

91

It did, however, have in it the idea of equal protection under the law.

92

It certainly did. It was written in the wake of a civil war as the victors imposing their will on the rebel states so that they couldn’t relegate the black population to the status of near slavery again.

With that in mind, how do we go from this historical fact to the amendment providing a right of gay marriage?

93

Look, if you want a strict textual interpretation of the 14th Amendment, it’s going to be one which guarantees equality before the law regardless of sexual orientation. There’s nary a peep in the 14th Amendment about race.

Certainly the context of the 14th Amendment makes it obvious that the focus was prohibiting racial discrimination, but the text itself doesn’t suggest that the equality before the law it guarantees should be restricted solely to cases of racial discrimination. Race isn’t so much as mentioned. And, indeed, legal precedents exist which apply the equal protection clause to religious and gender discrimination. Sexual orientation as a classification bears quite a lot in common with gender and race, each being socially constructed categories based on a few superficial and legally irrelevant immutable physical characteristics and frequently used to subject certain groups of people to legally-sanctioned discrimination in the past.

So, there is an argument to be made that people have a right to equal access to the legal institution of civil marriage, regardless of their sexual orientation. Right now that is not the case, as same-sex couples cannot avail themselves of the legal rights and obligations pursuant to marriage, and the argument would be that this violates the equal protection clause. Now, that argument may or may not pass legal muster in the eyes of any given court, but it’s a perfectly obvious argument that is based on a perfectly straightforward reading of the equal protection clause.

But, you say, the authors of the 14th Amendment most certainly wouldn’t have thought that they were authoring a right to same-sex marriage! Of course not. But they would have held almost entirely factually false views on the nature of homosexuality, and on the basis of those views would have believed it to be the case that the state has a compelling interest which provides a legitimate basis for legally forbidding same-sex marriages. So long as they really intended to guarantee equality before the law, what they thought about homosexuality based on objectively false beliefs is pretty much irrelevant. Even if you go in for original intent interpretations, should you not look at what the legal intentions of the authors with their false beliefs filtered out?

94

Yet, oddly, it doesn’t limit itself to ex-slaves, it says it applies to “any person”. Any. Does it not mean to you what it says it means?

By refusing to use an outcome-determined choice of interpretation method. :dubious:

95

Of course it applies to any person, but let’s take it all the way down. Does it mean that a law against child rape is unconstitutional because such a law only targets those who want to rape children?

I would contend that such a law applies equally to everyone (i.e. I cannot rape a child, you can’t, Jeffrey Dahmer can’t, etc.) And a law prohibiting same-sex marriage, in my view is the same. I can not marry a same-sex partner, nor you, nor Rock Hudson, Liberace, or John Hagee.

Not that I’m in any way equating child rape with homosexual marriage, but just because one wishes to engage in a certain behavior doesn’t make it an equal protection violation for that behavior to be outlawed.

If the law said, for example, that only people with an odd last digit of their social security number can have a same sex marriage, then that would be an equal protection violation. But the law says that nobody can.

Under your interpretation of the 14th, there is no type of law known to man that could be passed without creating an equal protection violation…

96

I’m sorry, but this argument just doesn’t fly. Plus SCOTUS already rejected it in Loving. The State of Virginia argued that blacks and whites had equal rights to marry within their own race. The court quite rightly concluded that that was a load of BS. This silliness that gays have an equal right to marriage because they can marry members of the opposite sex is even more disingenuous, since blacks and whites in Virginia at least had a chance of finding someone with whom they could have a meaningful relationship in their marriage eligibility pool. Gays don’t even have that.

97

Nor is there a peep about age, or status as a felon. So a 10-year-old has a Fourteenth Amendment right to drive a car, and a felon has a Fourteenth Amendment right to own a gun, if that’s the approach. Even a textualist realizes that you cannot adopt a method that interprets a statute into a nullity, or to an absurd result. So the framework of textualism says you look to the result that the draftres and ratifier intended, because you cannot otherwise give effect to the legislation.

98

Yes, I’m quite aware of that. It is jtgain who said “Rational basis, strict scrutiny, protected classes…all bullshit neo-legal terms which have no basis in textual or original theory of the constitution.” I was merely saying that if he wants to throw all that stuff out and go to some strict textual reading, we’re left with some sort of strict equality for all.

On the other hand, once we’re deciding what constitutes a suspect class, there’s an argument to be made that sexual orientation should be included based on its similarities to other suspect classes. You’re perfectly welcome to think that argument doesn’t pass muster, but it’s an argument there to be made and it doesn’t require any twisting of the text.

99

Strawman. Not all rights are fundamental. Very often they conflict, as in the example you mention. There is no conflicting right involved in same-sex marriage, however.

100

Warning: long-windedness ahead!

In order to speak specifically to the California case in question from a position of less ignorance, I’m reading the full text of the decision – albeit skimming over some parts. For the benefit of those less masochistic than I, I will summarize the decision and its major arguments below. I am not a lawyer and have no training in the law besides several long-running discussions with Bricker, Dewey Cheatum Undhow, and various other more learned members of this discussion board, so by all means present any nitpicks or clarifications. The full text can be found here (nice friendly html link, pdf link to actual decision found on linked page, labelled In re Marriage Cases, (S147999))

The court holds the following:

(A) Same-sex couples have a right under the CA constitution to marry, grounded in the privacy and due process clauses. This is not a new right to same-sex marriage, but the extension of the long-recognized right to marry the consenting adult of one’s choice to a group previously forbidden access to that right.

(B) The right of same-sex couples to marry is not adequately satisfied by California’s domestic partnership legislation.

(C) Sexual orientation constitutes a suspect class for the purposes of the equal protection clause, and the justification for restricting same-sex couples from marriage offered by the state do not pass the strict scrutiny test.

The arguments:

(A) The court summarizes a vast array of cases supporting marriage (importantly, marriage to the consenting adult of one’s choice) as a fundamental right. Perez (in which California’s anti-miscegenation law was overturned) comes up more often than any other, but there are many other cases mentioned. Marriage as a fundamental right is grounded in two constitutional sources: it is one of the fundamental liberties a person many not be deprived of without due process of law (Article 1, Sec. 7(a)), and it is a part of the inalienable right to privacy (Article 1, Sec. 1). The explicit right to privacy in the CA constitution was apparently added at some point following the Griswold decision, and was explicitly enacted as enshrining a right to privacy as had been found in Griswold.

The court considers the argument that this long-established right is not the right being asked for, that the long-established right to marriage is specifically a right only to opposite-sex marriage and that recognizing a right to same-sex marriage would be finding a novel right. The court rejects this argument, saying that it is inappropriate “to define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons – composed of individuals sharing a personal characteristic such as a particular sexual orientation – who historically have been denied the benefit of such rights.” This is one of the key points where the dissenting opinions disagree.

The court also considers arguments presented by the Prop 22 Legal Defense Fund asserting that the right to marry is inextricably linked to procreation. The court finds this argument to be “fundamentally flawed for a number of reasons” and goes on to enumerate several of said reasons. I trust they are obvious enough I need not repeat them here.

(B) The court concludes that even though nearly all rights and obligations pursuant to marriage are granted by California’s Domestic Partner Act, by classifying gay relationships under a different name the state fails to accord the family relationships of gays “the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.” They also note that Perez would have been decided the same way even if “transracial unions” had been offered by the state.

(C) The court considers three grounds for applying strict scrutiny to the equal protection claim advanced by the plaintiffs: i) that the marriage laws discriminate on the basis of sex, ii) that they discriminate on the basis of sexual orientation and that should be grounds for strict scrutiny, and iii) that they impinge on a fundamental right. The court rejects (i), citing a bunch of precedents where the use of gender classifications to pick out homosexual couples has been ruled not to be discrimination on the basis of sex.

With regards to (ii), the state apparently argued that the marriage statutes don’t discriminate against gays because gays are free to marry members of the opposite sex. This argument gets laughed out of court. To my mind if the court agrees with this argument, it has to accept the plaintiff’s argument in (i) anyways, since the statute clearly discriminates on either gender or orientation, which one depending on how you parse “discriminate on the basis of”. That it discriminates on the basis of neither is a ludicrous position. And of course, gender triggers strict scrutiny. There are some battles you shouldn’t try to win. However, two of the dissenting judges actually agree with this point, astonishingly (to me, anyways) holding that the marriage statutes don’t discriminate against same-sex couples because they aren’t singled out by name. Huh? They admit there is disparate impact, but deny that this is adequate if there is no evidence that points to intent to impose that disparate impact, and cite some precedent apparently on point. But this still makes no sense to me, because Prop 22 was very clearly passed with the intent to prevent full equality to same-sex couples. But no, these dissenting judges say the people of California were just expressing their love of tradition, or something. All I know is I want to meet their dealer, cuz he apparently has some good shit. The rest of their dissent is predictable and relatively reasonable, arguing that same-sex marriage would be a new right rather than an extension of the old one, and that orientation shouldn’t be a suspect class. This bit just blew my mind, though.

Anyways, here we get to the interesting bit – whether discrimination on the basis of sexual orientation should trigger strict scrutiny. This was an issue “of first impression” in California, and so this part of the decision may well be the most legally significant part. Even if an anti-SSM amendment is passed in fall, sexual orientation will trigger strict scrutiny in Cali from here on out (barring language in the amendment to change that, but I haven’t seen anything along those lines). The Court of Appeal in the decision under consideration had held that suspect classifications must (1) be based on an immutable trait, (2) bear no relation to a person’s ability to perform or contribute to society, and (3) be associated with a stigma of inferiority and second class citizenship. It had held that (2) and (3) were clearly met, but that sufficient evidence for (1) had not been presented, and so ruled that the rational basis test was appropriate rather than strict scrutiny. The Supreme Court disagrees with this conclusion, saying that immutability isn’t required in the case of religion, which is a suspect category in CA, and that anyways orientation is so integral a part of one’s identity that it is inappropriate to require someone to repudiate it in order to avoid discrimination.

The state argued for a fourth condition, namely that a suspect group lack the ability to use the political process to address their needs, claiming that the legislative advances made for gay rights obviates any need for strict scrutiny. To this the court says by that standard gender and race wouldn’t qualify either, and so rejects the condition (this is the point on which the dissenting opinion disagrees with the suspect classification conclusion).

Finally the state argues that if orientation is to be a suspect class it should only trigger an intermediate scrutiny, to which the court responds that they’ve never done it that way before. Suspect class triggering strict scrutiny it is.

In the strict scrutiny phase, the only state interest proferred by the defendants was “preserving the traditional definition of marriage”. Unsurprisingly, this is found to be utterly inadequate. I expect by that the Attorney General’s office knew well that if it came to strict scrutiny the jig would certainly be up, and so didn’t try to float a raftload of tenuous arguments for implausible state interests at stake.