The CA Marriage Ruling Was A Huge Defeat (And Victory)

One week ago, the California Supreme Court released its landmark decision In Re Marriage Cases, ruling 4-3 that 2000's proposition 22 as well as the current California marriage statute were unconstitutional (Section 308.5 and Section 300 of the California Family Code, respectively).

There has been some excellent analysis of the decision by Professor Arthur Leonard as well as other academics. At the Los Angeles Times website there's an interesting "Dust up" going on between Jon Davidson of Lambda Legal and Alliance Defense Fund's Glen Lavy.

Although I salute the Court for its serious (172 pages) and generally well-written decision, I believe that as one of the few bloggers who have actually read the entire decision I have a duty to publicize and explain what I see are the problematic aspects of the decision.

1) The court (unanimously!) failed to recognize the salience of traditional marriage laws as discriminating on the basis of gender--this was the rationale of the Hawai'i Supreme Court court used in the 1993(!) Baehr decision. This reasoning has failed to garner more than 2 votes on any high court considering the matter since then (New York, New Jersey, Washington, Maryland, Massachusetts). Not even the most liberal member of the California Supreme Court, Justice Joyce Kennard signed onto the gender discrimination theory. I, together with many other academic queer legal theorists, subscribe to the Law-Koppelman theory that sexual orientation discrimination is (almost) always gender discrimination. The Court did not even treat this argument seriously and dismissed it in a cursorily written section.

2) Justice Carol Corrigan (single, unmarried woman living with another woman for years appointed by Schwarzenegger in 2006) filed her own dissent to the majority opinion, thus failing to sign on to the decision's most important finding, that sexual orientation is a suspect classification requiring strict scrutiny. This makes this landmark finding, that all laws in California which discriminate on the basis of sexual orientation will only withstand judicial review if the Government has a compelling interest AND the statutes are narrowly tailored to meet this interest dependent on one solitary vote for its judicial effect. In practice almost no laws pass this strict scrutiny test. This test is what the California Court used to overturn Proposition 22 (passed by 61% of voters!) as well as strike 1977's marriage law from the books.

3) The court (unanimously, again!) agreed with the Governor that Proposition 22 enjoined the State Legislature from ever enacting a statutory gay marriage bill without a confirmatory vote by the People of California. In California this means that Assemblymember Mark Leno's Religious Freedom and Civil Marriage Protection Act would not have become law even if the Governor had not vetoed it twice. In other states that have passed DOMAs, i.e. initiative statutes, (and not Super-DOMAs, i.e. initiative constitutional amendments) the effect is the same--in order to enact marriage equality in those states (if those state courts follow the CA high court's reasoning) there would have to be another vote of the people in favor of marriage equality (or a US Supreme Court ruling--which do YOU think will happen first?) in order to eventually enact marriage equality.

The marriage ruling was also an incredible and emotionally satisfying victory for LGBT people as well, I do not want to minimize its important and impact, but I do want to point out the ways the decision could have been even stronger.