In an opinion by the California Supreme Court, filed on May 15, 2008, in a close 4-3 decision, the court decided that same-sex marriages be accorded the same rights as opposite-sex marriages, and that not recognizing same-sex domestic relationships as “marriages” renders the California statutory scheme on that issue unconstitutional. [1]

In a previous case, In Lockyer v. City and County of San Francisco decided in 2004 (at 33 Cal.4th 1055, 2004) the same court invalidated same-sex marriage licenses issued by the City of San Francisco.  In that case, they held that officials of the City and County of San Francisco acted unlawfully by issuing those licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional. The court in this case found that the statutes were in fact unconstitutional and affording same-sex domestic partnerships the right to marry, putting them on the same legal footing as opposite-sex marriages.

 The court also “overruled” a referendum passed by 64% of California voters prohibiting same-sex marriages in the State which prohibition embodies the State’s Family Code. [2]   . In doing so they found that the State’s Constitution Article XI section 12 and 14 unconstitutional. [3] Although the Constitutional sections did not directly address same-sex verses opposite-sex marriages, the court found that by implication they did limit marriage to opposite-sex marriages, thus precluding same-sex relationships to be called marriages. Also Family Code section 300 was struck down on Constitutional grounds, which provided that: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” In light of its language and legislative history, the court concluded that the vote of the people banning homosexual marriages as enacted by voters and included in the State’s Family Code was unconstitutional  and that legal marriages by persons of the same sex may be performed in California, those marriages considered on equal footing as traditional marriages.

 In 1999, the Legislature had enacted legislation creating a statewide “domestic partnership” relationship. Although not a marriage, California became one of the first states to allow cohabitating adults of the same sex to establish that ‘domestic partnership’ in lieu of the right to marry.” [4] The domestic partnership law provided substantially the same legal rights of a marriage between the opposite-sex , except, while providing the same material (property) rights the statute did not provide the same  responsibilities that a “marriage did. The case itself was brought by the City of San Francisco to make same-sex marriages legal.

The proponents of legalizing same-sex marriages argued that by limiting marriage to opposite-sex couples, California’s marriage statutes violated a number of provisions of the California Constitution. They advocated that the challenged statutes violate a same-sex couple’s fundamental “right to marry” as guaranteed by the privacy, free speech, and due process clauses of the California Constitution (Cal. Const., art. I, §§ 1, 2, 7), [5] and additionally violate the equal protection clause of the California Constitution (Cal. Const., art. I, § 7).   

  The court first found, and all parties agreed, that the right to marry in this State was a fundamental right guaranteed in the Constitution. Accordingly, the court concluded that the right to marry [6] should guarantee same-sex couples the same substantive constitutional rights as opposite couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”. [7]

Before the court could conclude that the provisions were unconstitutional, they had to determine whether the statutes violated the rights of same-sex couples to “equal protection of the laws”. The “equal protection clause”, giving equality of protection of the law(s) to all peoples, is recognized as a federally protected fundamental right of the people, even though not stated per se in the U.S. Constitution. Equal protection applies to any case anywhere where it is alleged that a disparity when the law is applied. The same equal protection is in the California. [8]

Therefore, in deciding the constitutionality of a State enacted Code or Constitutional provision, the court was bound to first analyze the law and decide what level of scrutiny should be applied. In this case scrutiny means how closely the law(s) had to be analyzed by the court in determining whether the law was constitutional. In this case the contention was that same-sex couples were treated differently under the law than opposite-sex couples.

California has two levels of scrutiny that can be applied to the law in the case of an equal protection challenge. [9] The level of scrutiny applied could have differing outcomes in the case. The first is called the ‘rational relationship’ or ‘rational basis’ standard” [10] which is the “basic and conventional standard for reviewing economic and social welfare legislation in which there is a ‘discrimination’ or differentiation of treatment between classes or individuals” (See this case  pages 82-83 of the Court’s opinion). Under that standard, which contains a presumption of constitutionally [11]   and requires that the statute merely bears some rational relationship to a conceivable legitimate state purpose.

The second, more a more stringent test should be applied in cases involving ‘suspect classifications’ or touching on ‘fundamental interests.’  The courts, under this “strict scrutiny test”, must examine the statute more stringently and must decide if the State enacted  statute has a  compelling interest which justifies the law and the distinctions;  in this case whether the  distinction between same-sex and opposite-sex  right to marry by the law must be necessary to further the States interests or purposes. [12] The court here considered three instances where the law should be carefully examined (under the strict scrutiny test):

(1) that the law discriminated on the basis of sex (2) discriminated on the basis of sexual orientation, and (3) impinged upon a fundamental right of a party (the court had already concluded the right to marry a fundamental right).

The court found that in the context of California’s equal protection clause, the differential treatment  of the two classes (same-sex, opposite sex marriages) prescribed by the statute did not discrimination on the basis of sex, and thus was not subject to strict scrutiny.

Under the second test, the court concluded that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution’s equal protection clause. Therefore, the court found that even though the statute did not discriminate on the basis of sex (gender) that it did on the basis of discrimination based on sexual preference (at page 99).

Thirdly the court considered whether the term marriage was a constitutional right applicable to all families, regardless of sex. They found that the label, if applied only to opposite-sex relationships, rendered the statutes banning such marriages unconstitutional.  In essence the court concluded that the term “marriage” was a fundamental right and should be applied to all such unions regardless of the sex of the participants. They stated (at page 104) that the term marriage, applying only to conventional marriages “ impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples. They further found that the State had no compelling interest to limit marriage only to opposite-sex couples.

The court concluded that limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and  that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.  The Chief Justice Ronald George wrote the opinion and 3 other Justices agreed with it. The remaining 3 Justices did not agree with the opinion and dissented (voted against it). So by a close 4-3 margin the court legalized same-sex marriages in California. They became only the second state in the Union to do so (the other being Massachusetts).

The three dissenters from the slim majority decision noted that there is a long standing tradition in California law to honor the decision of the voters here in passing a ban on same-sex marriages) and that this decision should be honored; and in limiting the term marriage to opposite-sex marriages was did not violate any constitutional provision. By doing so, the dissenters went on that the court was not satisfied with the pace of democratic change, so now, by judicial command, substituted  its own social policy views for those expressed by the People themselves (in elections).  It was improper, they said, to invent a new constitutional right which could not be changed by the legislature, thus enacting a permanent redefinition of marriage, regardless of the popular will. They stated further the court “simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice”  (at page 7 of the dissenting opinion of Judge Baxter).

 In a separate dissenting opinion by Judge Corrigan he states at the outset “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages.  But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote.  This court can overrule a vote of the people only if the Constitution compels us to do so.  Here, the Constitution does not”. He concluded that since the former “domestic partnership” law afforded substantially the same rights to same-sex unions as d to opposite-sex marriages, there should be no constitutional fundamental right to call same-sex unions ‘marriages” under California law. He also agreed that the expression of the voters, in enacting the ban on same-sex marriages, should be respected and the court should not step in and in essence overrule the will of the state voters on this issue.

 In conclusion the only remedy now available to opponents of same-sex marriages is to vote to amend the Constitution to ban same-sex marriages in California. Such a provision is on the ballot for consideration in the June 2008 election. California has always prided itself in enacting laws (social laws and others) that are progressive and cutting edge in their application – a liberal stance. Such a decision by a conservative court (even if mildly so) is surprising. The opinion was written by the Chief Judge Ronald George, who was appointed to the Supreme Court by an ultra-conservative governor Pete Wilson. California is a liberal state but 64% of the voters took the conservative approach in banning same-sex marriages. You could have expected this from an Earl Warren court, but not this one. The language of the court had a tone of advocating the court’s own social views as opposed by the social views established by a clear majority of the people of California.

 This is dangerous ground upon which to tread, whether the subject involves homosexual marriages or any other right which the court finds not acceptable (to them). There have always been undertones of conflict in the courts to decide whether it is the courts prerogative to make new law. The right to do so was begun by Justice Marshall back in the early 19^th Century. Seven men, actually only four, substituting their own views, perhaps with a subconscious motive has to ring off key to a majority of Californians.