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.
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