by Edward Stein. [This post will also appear, in modified form, at Ed’s page at The Huffington Post.]
On May 15, the California Supreme Court, in a 4-3 decision, issued a powerful decision for LGBT rights that extends well beyond same-sex marriage, the specific issue before the court. Anyway you look at this decision, it is a thrilling victory for advocates of gay rights, but there are also reasons to temper one’s enthusiasm about the short-term implications for same-sex marriage.
I turn first to the exceptionally good news for gay rights advocates. The Supreme Court of California, one of the most respected state supreme courts in the country and with six of its seven members appointed by Republican governors, has said in no uncertain terms that laws that discriminate on the basis of sexual orientation are subject to the most exacting standard of judicial skepticism, what lawyers call strict scrutiny. In other words, courts will demand an especially strong justification for any laws that involve sexual-orientation classifications. In California, laws that make use of sexual-orientation classifications will, henceforth, be treated like laws that make use of race, ethnic, or sex classifications. Whatever happens with respect to marriage in California, this result is incredibly important.
Further, the court said that the fundamental right to marry—a right explicitly articulated in the landmark 1967 U.S. Supreme Court decision Loving v. Virginia, which struck down laws prohibiting interracial marriage—applies to marriages between people of the same sex. That we all have a fundamental right to marry does not mean that the government may place some restrictions on marriage, for example, that you can only be married to one person at a time and that you cannot marry someone under the age of twelve. Most of the courts that have heard cases related to gay marriage, including some courts that have ruled in favor of legal recognition for same-sex relationship, have specifically declined to say that the fundamental right to marriage extends to the right to marry a person of the same sex. In contrast, the recent California case explicitly took this dramatic step, saying that the fundamental right to marry includes the right to marry a person of any sex.
Additionally, unlike earlier victories for the legal recognition of same-sex relationship (for example, in Vermont and Massachusetts), in California, before this recent decision, same-sex couples could have their relationships recognized to the extent that they received almost all the benefits of marriage. In light of this, some trivialized this case as being just about the word ‘marriage,’ and argued that same-sex couples should be happy with the domestic partnerships, which was basically the equivalent of marriage. The California court rejected this argument and powerfully argued that the marriage/domestic partnership regime and other two-tiered regimes of relationship recognition—one for different-sex couples and one for same-sex couples—are unconstitutional.
Finally, rejecting the analysis of recent state supreme court decisions in Washington and Maryland, the California court said that the questions before it in no way turned on whether sexual orientations are “immutable,” that is, whether being gay or straight is something that is innate or unchangeable as compared to being learned or alterable. Some advocates have tried to link the innateness or immutability of sexual orientations to LGBT rights. While there is some initial plausibility to the idea that if someone is “born that way,” that person should be punished for having a characteristic, many scholars have pointed out numerous problems with linking how sexual orientations develop to LGBT rights. In rejecting arguments for same-sex marriages, courts in Maryland and Washington explained their decision in part by saying that the advocates of LGBT rights had not established the immutability of sexual orientations. The California court rejected this fallacious argument, noting that we embrace religious pluralism and protect people against religious discrimination even though people can change religious affiliations and no one thinks that people are born with a religious affiliation.
For these and other reasons, the recent California decision is a huge victory for LGBT rights and it is a decision that future courts, both state and federal, will need to seriously consider. Although the decision of the California Supreme Court counts as precedent only in California, because of the size of the state, the prominence of its highest court, and the strength and thoroughness of the court’s decision, other courts throughout the U.S. will surely have to take this decision serious. For example, the Supreme Court of Connecticut, which is deciding a similar case, may well be influenced by the California decision.
But now some notes of caution. There is still a real chance that California may not actually legalize same-sex marriages for a while. There is currently a proposal for a voter referendum on the ballot in California in November that would amend the state’s constitution to define marriage as between one man and one woman. Such an amendment, if it passes, would almost certainly nullify the practical result of the recent California Supreme Court’s decision. This is precisely what happened in Hawaii and Alaska after courts in those states ruled that the respective state constitutions required recognition of same-sex relationships. In both those states, voters passed referenda that amended the respective state constitutions, in effect nullifying the state courts decisions. Such a voter nullification of the California Supreme Court’s recent decision is possible, but far from a forgone conclusion.
Assuming that same-sex marriage in California does become a reality, same-sex couples from all over America can come to California and get married. When those couples go back to their home states or travel to other states, sometimes their relationships will be recognized (for example, in Massachusetts, which has same-sex marriage, or in New York that, in light of a recent decision, will recognize same-sex marriages from other jurisdictions (see MY PRIOR POST)) and sometimes they will not (more than two-thirds of the states in the United States have laws or state constitutional amendments that explicitly refuse to recognize same-sex marriages from other jurisdictions). Further, the federal government will not recognize same-sex marriages, which means, for example, that a foreigner who marries a California resident of the same-sex will not be able to become a U.S. citizen in virtue of being married to a U.S. citizen. Although each state gets to make its own laws about marriage (within certain constraints in virtue of the U.S. Constitution), according to the Defense of Marriage Act, a federal law passed in 1994, the U.S. government will not recognized same-sex marriages, even in a particular state allows same-sex marriages. Until that law is repealed by Congress or ruled unconstitutional by a federal court, the importance of same-sex marriages will be limited.
Despite these limitations, advocates of LGBT rights and marriage equality for same-sex couples should be thrilled. Although more work needs to be done in California to oppose the voter referendum defining marriage as between one man and one woman, this recent decision is a dramatic milestone in the quest for full equal rights for lesbians, gay men, bisexuals and transgender people.