Friday, May 16, 2008

California Supreme Court decision

The California Supreme Court recently decided that a statutory scheme allowing marriage to only heterosexual or opposite gender couples was unconstitutional under the California state constitution. The majority's opinion in the case is marvelous in many ways, first and foremost because of the result, but also because of its reasoning. It focuses on the what the right to marry means to both the individuals involved and society as a whole. Refreshingly, and unlike most religious discussions, sex is not mentioned. Rather, partnerships and the families they engender (couples and extended family, not just children), are viewed as whole relationships, not just the sum of single, discrete economic, social, emotional, psychological, or physical components.

I'm going to include a long excerpt from the majority opinion below, but I would recommend reading more, as I hope to do in the near future. For now, however, let me remind everyone, as others have elsewhere, that the legal and political analysis required to understand what may yet happen in light of the November ballot initiative is rather complicated. (See Greenwald article in Salon- hat tip to Paul M. at Jake's place.)

What is at stake here is NOT an interpretation of the U.S. Constitution but rather the California state Constitution. Under the U.S. Constitution, there is no express right to privacy or "fundamental rights" as such -- notions which 20th c. case law only recently found implied in the Due Process clause of the 4th Amendment. In contrast, the California constitution not only has its own body of case law from its own courts interpreting it, it now has amendments that expressly provide for the right of privacy and other rights not mentioned in the U.S. Constitution. They can be found here.

The big outstanding question is whether the November ballot initiative (assuming it is found to be legally qualified), which would amend the California state constitution to say that marriage is only between a man and a woman, could, if it is passed by the voters, in effect reverse the court's decision. Some speculate that it might not, given the court's finding that the right to marry is a fundamental right. Although I certainly would welcome that result in this instance, as a legal matter, I find the notion questionable. While I also do not think that any constitution should be amended by a majority vote of the electorate, given that the California constitution allows this, it seems both impractical and dangerous to suggest that a court's interpretation of a constitution could prevail over a constitutionally adopted amendment. As an institutional matter it makes no sense. I am sympathetic to the notion that Equal Protection cannot said to realistically exist with regard to marriage if the ballot initiative were to pass. Nevertheless, in the end I would not want four justices of the California Supreme Court to decide that their opinion cannot be altered by any means save appointment of new justices who would reverse them.

For now, however, I want to put aside those concerns, as important as they may be, and continue to celebrate the majority opinion, which reads in part as follows:

From In re Marriage Cases, S147999 (Cal. May 15, 2008):

Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution....

Although all parties in this proceeding agree that the right to marry constitutes a fundamental right protected by the state Constitution, there is considerable disagreement as to the scope and content of this fundamental state constitutional right. The Court of Appeal concluded that because marriage in California (and elsewhere) historically has been limited to opposite-sex couples, the constitutional right to marry under the California Constitution properly should be interpreted to afford only a right to marry a person of the opposite sex, and that the constitutional right that plaintiffs actually are asking the court to recognize is a constitutional “right to same-sex marriage.” In the absence of any historical or precedential support for such a right in this state, the Court of Appeal determined that plaintiffs’ claim of the denial of a fundamental right under the California Constitution must be rejected.

Plaintiffs challenge the Court of Appeal’s characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs’ position. In Perez v. Sharp, supra, 32 Cal.2d 711 — this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional — the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as “a right to interracial marriage” and did not dismiss the plaintiffs’ constitutional challenge on the ground that such marriages never had been permitted in California.32 Instead, the Perez decision focused on the substance of the constitutional right at issue — that is, the importance to an individual of the freedom “to join in marriage with the person of one’s choice” — in determining whether the statute impinged upon the plaintiffs’ fundamental constitutional right. 32 Cal.2d at pp. 715, 717, italics added.) Similarly, in Valerie N., supra, 40 Cal.3d 143 — which involved a challenge to a statute limiting the reproductive freedom of a developmentally disabled woman — our court did not analyze the scope of the constitutional right at issue by examining whether developmentally disabled women historically had enjoyed a constitutional right of reproductive freedom, but rather considered the substance of that constitutional right in determining whether the right was one that properly should be interpreted as extending to a developmentally disabled woman. (40 Cal.3d at pp. 160-164.) And, in addressing a somewhat analogous point, the United States Supreme Court in Lawrence v. Texas (2003) 539 U.S. 558 concluded that its prior decision in Bowers v. Hardwick (1986) 478 U.S. 186 had erred in narrowly characterizing the constitutional right sought to be invoked in that case as the right to engage in intimate homosexual conduct, determining instead that the constitutional right there at issue properly should be understood in a broader and more neutral fashion so as to focus upon the substance of the interests that the constitutional right is intended to protect. (539 U.S. at pp. 565-577.)

The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs’ argument that we recognize they are not seeking to create a new constitutional right — the right to “same-sex marriage” — or to change, modify, or (as somehave suggested) “deinstitutionalize” the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords to same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords
to opposite-sex couples. For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of “same-sex marriage.”

Accordingly, in deciding whether the constitutional right to marry protected by the California Constitution applies to same-sex couples as well as to opposite sex couples and, further, whether the current California marriage and domestic partnership statutes deny same-sex couples this fundamental constitutional right,
we shall examine the nature and substance of the interests protected by the constitutional right to marry. In undertaking this inquiry, we put to the side or the moment the question whether the substantive rights embodied within the constitutional right to marry include the right to have the couple’s official relationship designated by the name “marriage” rather than by some other term, such as “domestic partnership.” The latter issue is addressed below. (See, post, pp. 80-82.)

In discussing the constitutional right to marry in Perez v. Sharp, supra, 32 Cal.2d 711 (Perez), then Justice Traynor in the lead opinion quoted the seminal passage from the United States Supreme Court’s decision in Meyer v. Nebraska, supra, 262 U.S. 390. There the high court, in describing the scope of the “liberty” protected by the due process clause of the federal Constitution, stated that “ ‘[w]ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one’s own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ ” (Perez, supra, 32 Cal.2d at p. 714, italics added [“to marry” italicized by Perez], quoting Meyer, supra, 262 U.S. 390, 399.) The Perez decision continued: “Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men.” (Perez, supra, 32 Cal.2d at p. 714, italics added.)

Like Perez, subsequent California decisions discussing the nature of marriage and the right to marry have recognized repeatedly the linkage between marriage, establishing a home, and raising children in identifying civil marriage as the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship. constitutional right to marry. In undertaking this inquiry, we put to the side for the moment the question whether the substantive rights embodied within the constitutional right to marry include the right to have the couple’s official relationship designated by the name “marriage” rather than by some other term, such as “domestic partnership.” The latter issue is addressed below. (See, post, pp. 80-82.)

* * * *

Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple. As noted above, past California decisions have described marriage as “the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.” (Marvin v. Marvin, supra, 18 Cal.3d 660, 684; accord, Maynard v. Hill, supra, 125 U.S. 190, 205 [describing marriage as “the most important relation in life”].) The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual’s happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual’s development as a person and achievement of his or her full potential.

Further, entry into a formal, officially recognized family relationship provides an individual with the opportunity to become a part of one’s partner’s family, providing a wider and often critical network of economic and emotional security. (Accord, e.g., Moore v. City of East Cleveland (1977) 431 U.S. 494, 504-505 [“Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. . . . Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. . . . Especially in times of adversity . . . the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life”].) The opportunity of a couple to establish an officially recognized family of their own not only grants access to an extended family but also permits the couple to join the broader family social structure that is a significant feature of community life.39 Moreover, the opportunity to publicly and officially express one’s love for and long-term commitment to another person by establishing a family together with that person also is an important element of self-expression that can give special meaning to one’s life. Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that endeavor is without doubt a most valuable component of one’s liberty and personal autonomy. Although persons can have children and raise them outside of marriage, the institution of civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, a ready and public means of establishing to others the legal basis of one’s parental relationship to one’s children (cf. Koebke, supra, 36 Cal.4th 824, 844-845; Elden v. Sheldon, supra, 46 Cal.3d 267, 275), and the additional security that comes from the knowledge that his or her parental relationship with a child will be afforded protection by the government against the adverse actions or claims of others. (Cf., e.g., Dawn D. v. Superior Court, supra, 17 Cal.4th 932 [when biological mother was married at the time of a child’s conception and birth, husband is the presumed father of the child, and another man who claims to be the child’s biological father has no constitutional right to bring an action to establish a legal relationship with the child].)

There are, of course, many persons and couples who choose not to enter into such a relationship and who prefer to live their lives without the formal, officially recognized and sanctioned, long-term legal commitment to another person signified by marriage or an equivalent relationship. Nonetheless, our cases recognize that the opportunity to establish an officially recognized family with a loved one and to obtain the substantial benefits such a relationship may offer is of the deepest and utmost importance to any individual and couple who wish to make such a choice.

If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage (and any similar institution, such as domestic partnership). In recognizing, however, that the right to marry is a basic, constitutionally protected civil right — “a fundamental right of free men [and women]” (Perez, supra, 32 Cal.2d 711, 714) — the governing California cases establish that this right embodies fundamental interests of an individual that are protected from abrogation or elimination by the state.

Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it. (Accord, Poe v. Ullman (1961) 367 U.S. 497, 553 (dis. opn. of Harlan, J.) [“the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected.”

Slip opinion, p. 49-63.

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