Deconstructing the Gay Marriage Decision

Let me try to explain how the boneheads on the Supreme Court fouled this one up . . .

Con Law 101: the Cliff Notes

It comes down to the California Supreme Court deciding that sexual orientation is a characteristic of such importance - equal to race, gender, or religion - that those claiming discrimination because of it deserve the highest standard of constitutional protection that can be extended. And the State always loses when that happens. So, now go home and wait for Armageddon.

Con Law 101: A Bit More for Legal Wonks

The Court has declared the classification of sexual orientation to be what is termed a suspect class in constitutional law:

"[W]e conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment [not at the federal level, but again, any State must meet the federal standard, but can choose to afford greater protection than the feds do], and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple."

Now, for the layperson, this means that a strict scrutiny standard of review must apply. Strict scrutiny is the highest standard to meet, and the State nearly always loses, meaning its law will be found to be unconstitutional. Let's look at the standard:

"Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification [here, it is the fact that the law calls the state-sanctioned relationship between a man and a woman as marriage, whereas for gays it is a domestic partnership] the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest."

Now, this is where the Court just flat out says to the traditional institution of marriage, "We're just not that into you":

"We conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — 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 mine]."

How come?

1. "The exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples." There simply is no room in law for the historical or traditional or moralistic "framework of the institution of marriage." As the Digihusband noted, "They just did away with the definition of marriage."

2. "Retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, 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." Never mind that a Court should not speculate - "likely", not certainly - but what were the data that support that presumption?

3. "[B]ecause of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples." But wait, isn't this all about the legal framework of the institution of marriage? If they presently enjoy the legal rights and obligations of married persosn under the state statutes, doesn't that discount this factor in your decision-making?

4. "[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." "Second class citizens?" How much does Ellen make?

The right to marry is a fundamental right - like the right to free speech and the parctice of religion - recognized by the California Constitution. Nowadays, the notion that a couple should not be allowed to marry because it would be an interracial union is laughable. The step before the Supreme Court - the California 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."

Not so, sayeth the Supreme Court - it is a broader issue and the "right to marry" must be interpreted in a "more neutral" fashion. Open your minds, people! Of course, then why not allow polygamy and incest? "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." The more the merrier!

But wait - there's more: "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 [and trust me, it is happening more now than ever before], 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 [citations ommitted], 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 [isn't that what adoption is for? And does this mean that a child born to a married lesbian couple is automatically the legal child of both? How do you handle the guys, unless a child born ro a surrogate at the contract of one or both will be found to be the legal child of both].

Okay, let's boil it down - "We're happy, we're in love, so nothing can be denied us."

God help us all . . .