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: Law and Letters

California Is Awesome

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The California Supreme Court overturned the voter-approved ban against gay marriage. The court held that the law?s limitation of ?marriage? to opposite sex couples is unconstitutional under the CA constitution. This is interesting from an an equal protection perspective, because California has long allowed ?domestic partnerships? mirror the rights, privileges, and responsibilities of marriage under a separate designation.

At issue was whether the ?failure to designate the official relationship of same sex couples as marriage violates the California Constitution.? See, people, terminology matters! It's not merely a semantic, structuralist thing! The legal rights and responsibilities are the most significant (to lawyers) aspects of marriage, but the appellation is not insignificant either for the symbolic purposes. Nor should the state's authoritative imprimatur be diminished in its recognition of the rights of gays to marry and form legal, symbolic, officially recognized and sanctioned unions.

The decision was based on the the following: "Article I, section 1 provides: ?All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.?" and on the Equal Protection Clause of the California Constitution.

Choice quote: "[R]etaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise ? now emphatically rejected by this state ? that gay individuals and same-sex couples are in some respects ?second-class citizens? who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.?

Jubilation aside, of course this isn't over. Defense of Marriage Act issues, conflicts of law, the privileges and immunities clause, the fact that sexual orientation isn't a protected class under the equal protection jurisprudence.

But you know, for now, revel in the awesomeness.

UPDATE: Marty Lederman at Balkinization has it right. This is the money quote:

There is no persuasive basis for applying to statutes that classify persons on
the basis of the suspect classification of sexual orientation a standard less rigorous
than that applied to statutes that classify on the basis of the suspect classifications
of gender, race, or religion. Because sexual orientation, like gender, race, or
religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual?s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.

Full post as published by Law and Letters on May 15, 2008 (boomark / email).