Hidden punches

Posted on 22 May 2008 at 11:36pm
By Lisa Keen – Keen News Service

A closer look at California marriage ruling uncovers potential impact beyond Golden State’s borders

Reaction to the California Supreme Court ruling legalizing same-sex marriage in The Golden State, while decidedly widespread and significant, has been a bit muted, especially compared to the explosive reaction toward the Massachusetts Supreme Court on gay marriage in 2003.

And several hidden punches in the California court’s ruling have received very little attention so far.

The California ruling was front page and top of the Web site with all the major media for the first 24 hours after it was announced. But is was quickly overshadowed, at least on broadcast news, by President Bush’s thinly veiled global accusation that Sen. Barack Obama, the likely Democratic presidential nominee, would try to "appease" terrorists that Bush likened to Hitler.

But while Massachusetts was the first state to open the door to gay marriage, California’s marriage decision was the opening of the proverbial floodgates, allowing not only in-state residents to marry, but any gay couple from any other state to do so, too.

And to the extent that mainstream media covered the decision, they gave at least equal prominence and coverage to the ballot measure underway to close those floodgates. Still, there were several important aspects to the California decision that have escaped the headlines so far.

One signal of their importance was the reaction of gay legal activists: While usually cautious in their assessments of most legal victories and inclined to reassure heterosexual America that there is no threat to their domination of the species, those experts were unabashedly blunt and joyful following the California court’s May 15 announcement.

"This was a prize of inestimable value," said Matt Coles, executive director of the ACLU’s National Gay and Lesbian Rights Project.

He added, "Marriage in California will transform the discussion of marriage nationwide."

Mary Bonauto, the lead attorney in the Massachusetts case, said the California decision "marks a moment in history that will be remembered more like the crest of a wave than simply another ripple."

And the decision will, no doubt, elicit unprecedented reaction from opponents.

The New York Times reported Sunday, May 18 that supporters of the proposed constitutional amendment to ban gay marriage in California are already courting big money all over the country. Geoff Kors, head of the statewide gay group Equality California, predicted the November ballot battle would be "the largest, most expensive and most hard fought LGBT ballot measure in the history of the country."

There’s a reason for that.

‘Strict scrutiny’
Laws have to have a reason. Generally speaking, a reason given for creating a law must pass scrutiny: Is the reason rational?

State supreme courts in New York, Maryland, and Washington State have found laws banning gay marriage to be rational based on reasons that wouldn’t pass many people’s laugh test. New York, for instance, said banning gay marriage provided an inducement for straight people to marry. Washington said it "furthers procreation" among straights.

There are, however, circumstances under which the reason for a law must be more than rational; it must be compelling and the law must be drawn as narrowly as possible to meet that need.

This is called "strict scrutiny," and the "strict scrutiny" requirement kicks in when a law singles out for disparate treatment a group that has long been subjected to discrimination — known as a "suspect class"— or when a law restricts a "fundamental right."

The U.S. Supreme Court has declared the right to marry to be fundamental, most notably in the landmark Loving v. Virginia case of 1967. But the nation’s highest court has never seen fit to scrutinize laws affecting gays negatively with anything more than the rational level of review.

And while various low level courts have done so on various cases, very few other courts — and no state supreme court — have done so.

But the California Supreme Court majority did apply strict scrutiny in this case.

Evan Wolfson, a preeminent attorney on gay marriage and head of the national Freedom to Marry organization, said he believes this is the first high court do use strict scrutiny on a gay case.

Chai Feldblum, a lesbian constitutional law expert, said the strict scrutiny analysis was "absolutely one of the most important things to come out of the opinion."

"Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society," wrote the majority in the California decision, "it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation."

The majority said laws banning gay marriage discriminate against gay people as a suspect class and impinges on their fundamental right to have "their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple."

The court then concluded that the state’s rationale for treating gays different — to retain a traditional and well-established definition of marriage— cannot be seen as either compelling or necessary.

In reaching its findings, the majority relied heavily on the California Supreme Court’s decision, in 1948, concerning bans on interracial marriage. In that case, Perez v. Sharp, the California Supreme Court was the first in the country to strike down laws banning interracial marriage.

And that constitutes another hidden punch for equal rights for gays: recognizing that gays face real discrimination and that laws are required to help fight that discrimination.

Previously, the political dialogue has suggested that, because gays did not face the same intensity of discrimination as African-Americans and that, unlike racial minorities, gays could escape discrimination by withholding the truth about who they love, gays and lesbians did not need legal protection from discrimination.

Comparison to Perez is also important for the legal history. As Georgetown University constitutional law professor Marty Lederman pointed out, Perez "prompted numerous states to abandon their anti-miscegenation laws, eventually leading to Loving v. Virginia," in which the U.S. Supreme Court, in 1967, struck down all bans on interracial marriage.

But it has an even more powerful influence, too, noted Lederman.

"[L]ong after same-sex marriage becomes ubiquitous and as unremarkable as mixed-race marriages — the [California Supreme] Court’s holding … is apt to have profound ripple effects across a wide range of different legal contexts. Indeed, if other courts were to follow it, it would require states to provide ‘civil unions’ to same sex-couples, with equal tangible rights and benefits, even where there is for some reason a state-law carve-out for ‘marriage’ as such. And in California itself, this particular holding will have dramatic precedential effects even if the voters were to carve out an ‘exception’ for marriage at the ballot this fall."

In other words, even if California voters amend the constitution to ban same-sex marriage, the state’s high court says all laws — not just marriage laws — that seek to treat gays differently must have a compelling reason. That includes laws governing employment, public accommodations, housing, credit, insurance — everything.

Parallels with other states
Not only does the California Supreme Court review law for the largest state in the country, it commands considerable attention and respect from courts in other states. And state supreme courts do influence on another.

After the New York State high court ruled in 2006 that the state Constitution did not require equal treatment of gay couples in marriage, its ruling was heavily cribbed by state supreme courts in Washington state (in 2006) and Maryland (2007).

The reasoning in the Vermont Supreme Court ruling on civil unions in 1999 — saying the state constitution requires equal protection and benefits but not necessarily the same word —was echoed by the New Jersey court in 2006.

California’s ruling may well become influential not only because of the size and respect demanded by its court, but by its reputation for being cautious.

In its decision, the majority took some time on page two of the 121-page document to say that the question it was ruling on "differs in a significant respect from the constitutional issue that has been addressed by a number of other state supreme courts" and other courts. For one thing, noted the court, California has already enacted comprehensive domestic partnership legislation.

"Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples … but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a ‘marriage’ whereas the union of a same-sex couple is officially designated a ‘domestic partnership.’

"The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as ‘marriage’ violates the California Constitution."

But Bennett Klein, an attorney for New England’s Gay & Lesbian Advocates & Defenders that led the Massachusetts case and is now awaiting word from the Connecticut Supreme Court, says the California and Connecticut cases are "identical."

"They are the only two states in which marriage litigation took place in the context of a state system that paralleled marriage," said Klein.

In California, it was domestic partnership; in Connecticut, it is civil unions. When he argued the Connecticut marriage case — Kerrigan v. Connecticut — the justices "keyed in on" the significance of this parallel system, said Klein. "And there was a lot of discussion about heightened scrutiny for sexual orientation discrimination, and about the inadequacy of calling the relationships for same-sex couples by a different name."

"So Connecticut is really keyed in on that," said Klein, "and I hope this incredibly powerful and eloquent [decision from California] will have an impact."

But Klein added that he expects the California decision "will have impact on other states as well."

"One of the things I found gratifying," he said, "was its articulation of the way that the history of discrimination against lesbians and gay people has informed the exclusion of marriage. So it will help other states understand that the exclusion has to be placed in the context of a group that has been historically excluded and discriminated against."

He continued, "It has shifted the focus from the context of the traditional nature of marriage to the context of the history of discrimination and exclusion of gays."

© 2008 Keen News Service
E-mail LisaKeen@aol.com



This article appeared in the Dallas Voice print edition May 23, 2008.

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