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Summary of summary of ruling

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As I was reading the opinion in the CA same-sex marriage case, I started taking notes for my own use, and it occurred to me that they might be useful to others as a summary, even though I am not (of course) a lawyer. So I'm presenting my notes here.

That said, it turns out that the first twelve pages of the opinion form what look to me like a complete summary of the more detailed discussion in the full opinion (which I haven't read yet), and those first twelve pages are readable and clear and worth reading. So if you have ten or twenty minutes to spare, go read the beginning of the opinion.

But I've written my mini-summary, so I'll post it anyway. In the following, "we" means the Supremes; my own editorial comments appear in [square brackets]. All bits in quotation marks are direct quotes from this opinion, not quotes from earlier cases.


pp. 1-4: Most other states' Supreme Courts that have had same-sex marriage cases have been resolving issues different from the CA issue. In most other states, the question has been whether same-sex couples can get the same rights as they'd get in a marriage. In CA, though, domestic partnership is already very similar to marriage, so the question here is whether it's unconstitutional to call the same-sex version something other than marriage. [My impression is that there are a few remaining important rights that aren't afforded to D.P.s, but I'm not certain of that, and in this opinion the Court consistently takes it as read that D.P.s are effectively marriage by a different name.]

pp. 4-5: We're not looking at the policy question of what should be legal; we're only looking at "whether the difference in the official names of the relationships violates the California Constitution." [emphasis in original]

pp. 5-6: Past cases establish the "right to marry" as a fundamental constitutional right in CA. Perez v. Sharp (1948), by stopping the ban on interracial marriage, implicitly established "that history alone is not invariably an appropriate guide for determining the meaning and scope" of that right.

p. 7: Past cases establish that the right "of two adults who share a loving relationship to join together to establish an officially recognized family [...] constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy" secured by the California Constitution.

p. 7: Given how important the "constitutional right to form a family relationship" is, we interpret the constitution as "guarantee[ing] this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."

p. 7 footnote: We'll use "gay" to refer to both lesbians and gay men, and "gay couple" to refer to same-sex couples. [Nice of them to make this explicit, but fooey on them for ignoring bisexuals. On the other hand, in fact they later do use the term "same-sex marriage" extensively.]

pp. 7-8: The Attorney General, arguing in defense of the existing law, says that even though the rights are the same, the term used doesn't have to be. By the way, we don't have to decide here whether it would be okay to use a term other than marriage for all civil marriages; we just have to decide whether it's okay to use two different terms with two different groups.

pp. 9-10: Even though the rights afforded by marriage and D.P. are basically the same, "current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution." Also, the different names raise equal-protection concerns. Furthermore, the "strict scrutiny" standard for equal-protection concerns applies here, because we conclude that sexual orientation is "a constitutionally suspect basis upon which to impose differential treatment." [In other words, sexual orientation is specially protected (wrt discrimination) in the same way that gender and race and religion are. Cool!!]

pp. 9-10 footnote: We'll use the term "plaintiffs" to refer collectively to the people challenging the statute. When we refer to the defenders of the statutes collectively, we'll call them "defendants."

pp. 10-11: Under the "strict scrutiny" standard, the state has to establish that it has a compelling interest in the different treatment, and that the different treatment is necessary to serve that interest. We conclude that "the interest in retaining the traditional and well-established definition of marriage [...] cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest." [emphasis in original]

pp. 11-12: We reach that conclusion for various reasons. First, "permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights." Second, there's real harm to same-sex couples "because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples." Third, gays have been disparaged in the past, which makes it more likely that the exclusion will be seen as an official statement of lesser status. Finally, the separate terms may perpetuate the idea that gays are second-class citizens.

p. 12: "Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."


Okay, I gotta go to work. I'm hoping to read the rest of the opinion later today, but I doubt I'll be taking notes at this level of detail.

4 Comments

One of the best arguments I have heard in this whole marriage debate is also the among simplest:

Of the following choices, who does more damage to the institution of marriage? (a) Pat and Robin, a lesbian (or gay) couple who has been in a committed relationship for decades; or (b) heterosexual Hollywood celebrities whose marriages often last from a few hours to a couple years, and are on display for everyone, including impressionable young people, to see.

Despite the fact that the decision in CA was clearly correct on the merits and the "have some humanity and do the right thing" perspective, I have some slight mixed feelings about this, because it unfortunately has the potential to help drive massive Republican turnout in certain states in the presidential election. I have become more firmly in the Obama camp and no longer have a toe (let alone a foot) in the McCain camp, so I hope this does not become a issue that works against Obama in a consequential way.

I know there are lots of arguments about this "voter turnout" issue I'm raising, among them, "The right thing is the right thing, period," and "If not now, when?" and "The fierce urgency of now," none of which can be dismissed lightly. It's easy for me to grumble about the timing, since I have not been waiting for years for this decision...so, bottom line: I am very pleased with yesterday's ruling, and let's hope any negative electoral consequences for Obama are kept to a minimum.

A couple years ago, I was at a luncheon with Gavin Newsom, and I was impressed with his passion on this issue--he didn't seem to care a bit that his actions may have stirred Republican turnout in the 2004 elections. He was focused on doing the right thing, period. He pointed out that it wasn't too long ago that inter-racial marriage was illegal in many states, and he firmly believes that history will judge him favorably for being an early and strong advocate for this expansion of marriage rights, or human rights, if you will.


Thanks for the note!

(Side note: I hadn't realized that you were no longer even partly supporting McCain; did you post about that and I just missed it? I'd be interested in hearing more discussion of that. But that can be another thread.)

I'm hoping to address this more in a forthcoming post, but I think the "Republican backlash" issue in the current situation is being blown a little out of proportion. In 2004, Bush supported the Federal Marriage Amendment while Kerry didn't; but my understanding is that none of this year's Presidential candidates support the FMA. (The only difference between the 2008 candidates that I've seen on same-sex marriage is that McCain isn't actively in favor of civil unions, while Obama and Clinton are.) So Republicans won't be able to use the FMA to get out votes. In 2004, there were 11 states with same-sex-marriage-related amendments on the ballots; in 2008, it looks like there may be as many as 7 such states, if that.

So ... I'm not seeing an easy way for Republicans to turn this into a get-out-the-vote drive this November anywhere but California (which seems likely to go Democratic) and maybe a few other states. (Unless there are local candidates running on anti-same-sex-marriage platforms.)

But I could be wrong. For example, one of the other states where it could make a difference is Florida, which is certainly an important state in the Presidential election.

Still, it should also be noted that there's a fair bit of disagreement over whether the issue really did substantially help the Republicans in 2004. (For example, as I understand it, most of the 11 states that had amendments on the ballot traditionally vote Republican anyway.) See that FMA article in Wikipedia for more about that controversy.

Re Newsom: He's still my hero. He probably destroyed any chance he might have had as a candidate for governor and even President, sadly, but he did so by standing up for what was right. I know, I know, I would feel differently if a conservative mayor were to stand up against a law they believed was wrong. (Though I have some respect for integrity even on stances I disagree with.) But in my book, Newsom is a hero. Most especially because he didn't have to do it--nobody was pressuring him, nobody expected it, nobody would've thought less of him if he hadn't done it. He took something that nobody dreamed was possible, and he just simply stepped forward and made it happen.


pp.1-4 -- It *was* true that DPs used to leave some important protections out. The first incarnation only covered 25 benefits, IIRC. Taxes were NOT covered. They were important benefits, but they left a lot out. As time went on, more and more got added, until IIUC, by 2006 they were identical in all but name.

Gavin Newsom is my hero, too. I'm going to send him a love-note to counteract all the nastygrams that I expect he'll be getting soon...


Thanks for the note, Kaitlin. I was under the impression in 2006 that Domestic Partnership in CA was legally defined as having all the rights and responsibilities of marriage, but I think that some friends of mine (a same-sex couple) told me last year that there were a couple of small but important things that weren't covered. But I'm talking through my hat here; I'll try and remember to follow up on this with actual facts.


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