As I have watched the genderless marriage debate rage in California since the Ides of May, 2008 I have been amazed–perhaps even impressed at the effectiveness of the genderless marriage proponents to convince the electorate that this is an equal rights or fundamental rights issue. While I vigorously disagree with that proposition (as I will explain in greater detail in this post), I think the genderless marriage proponents have done a incredible job of wrapping the debate in the cloak of equal protection and fundamental rights.
Let me start with the concept of just what a fundamental right is and what historically it has been construed to be, at least from a constitutional standpoint:
Only rights that are “objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ ” are recognized as fundamental. See Washington v Glucksberg 521 U.S. (1997) at 720-21.
Of course, the lower appellate court decision which the California supreme court reversed is no longer good law; however, that does not vitiate the validity of their analysis or argument. And, I think the lower court’s analysis of the fundamental right and genderless marriage is much more persuasive than is the majority’s in the supreme court’s opinion. I might also add the lower appellate court decision is also in harmony with the vast majority of appellate courts around the country which have considered these legal arguments:
Even the recent history of the last 50 years, however, does not demonstrate the existence of a “deeply rooted” right to or practice of same-sex marriage. While same-sex relationships have undeniably gained greater societal and legal acceptance, the simple fact is that same-sex marriage has never existed before. The novelty of this interest, more than anything else, is what precludes its recognition as a constitutionally protected fundamental right. . . [“A definition of marriage only recognized in Massachusetts and for less than two years cannot be said to be ‘deeply rooted in this Nation’s history and tradition’ of the last half century”]; see also Coshow v. City of Escondido, supra, 132 Cal.App.4th at p. 709 [noting the “mere novelty” of an asserted fundamental right “is sufficient to create a doubt” whether it is so deeply rooted in our country’s traditions and conscience as to be considered fundamental]; Duncan, Legislative Deference & the Novelty of Same-Sex Marriage (2005) 16 Stan. L. & Pol’y. Rev. 83, 86 [“To this point, no court has ever held that same-sex marriage is deeply rooted in a state’s history and tradition”].)
I think that both liberty and justice will continue without American Jurisprudence recognizing genderless marriage–nor can I envision genderless marriage as implicit in the concept of ordered liberty. I can think of no reasonable or rational argument to suggest that if same-sex couples are not allowed to use the term marriage to describe their relationships that either liberty nor justice would cease to exist–because a so-called right to same-sex marriage had been sacrificed. That’s just an unsupportable conclusion, particularly in light California’s legal protections already afforded to registered domestic partners even before this decision.
OK. Let’s take a look at some of the other appellate courts around the United States, which have considered and published opinions on these legal issues. Again, it is important to keep in mind that the California supreme court, the MA supreme court, and now the Connecticut supreme court reflect the extreme minority legal position in the United States state court decisions. The vast majority of state appellate courts have reached opposite conclusions. Most legal decisions have reaffirmed the traditional definition of marriage as both legal and an appropriate state distinction to make.
Let’s start with the New York supreme court, arguably one of the most well respected and certainly well established state supreme courts in the country, see Hernandez v Robles (2006) 855 N.E. 2d 1. The Hernandez court has an excellent analysis and discussion of the often repeated argument made by genderless marriage proponents: That genderless marriage rights are the same as the old interracial marriage cases and rights discussed therein. I disagree, as do the vast majority of state court justices who have considered these arguments. Discussing this analogy, the Hernandez Court stated:
If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice—if we agreed with plaintiffs that it is comparable to the restriction in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), a prohibition on inter-racial marriage that was plainly ‘‘designed to maintain White Supremacy (id. at 11, 87 S.Ct. 1817)—we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving. But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries—at first by a few people, and later by many more—as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950’s and 1960′s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non–Discrimination Act four years ago (L. 2002, ch. 2).
But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.
Very clear and stark differences between the Loving (and in California Perez) cases and the current claims of genderless marriage advocates. Critical distinctions–
1. Man/Woman marriage distinctions not based on prejudice, as were the interracial marriage cases;
2. Historical background of the interracial marriage cases far different from the history of the genderless marriage cases;
3. America fought a civil war to eliminate slavery, racism and unequal protection of African Americans;
4. Man/Woman marriage definition not merely a byproduct of historical injustice;
5. Genderless marriage relatively new concept;
6. Courts should not conclude (or society in general) that those believing in man/woman marriage only are irrational, ignorant or bigoted. (Indeed we are not).
The Hernandez court also rejected the fundamental right analysis of genderless marriage. It essentially mirrors the discussion above, and I won’t repeat it here. In short, marriage is a fundamental right; but, genderless marriage or same-sex marriage is not a fundamental right because it doesn’t meet the constitutional definition. It is not deeply rooted in this nation’s history. It is a relatively new concept.
The Arizona appellate court in Standhardt v Superior Court (2004) 77 P.3d 451also considered and rejected the interracial cases analogy based on Loving, and promoted by the genderless marriage proponents:
Petitioners assert that because the “freedom of choice to marry” recognized in Loving is unrestricted, it encompasses the right to marry anyone, including a same-sex partner, even in the face of traditional, societal disapproval of such unions. We disagree.
Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman. 388 U.S. at 12 (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”) (citation omitted); Baehr, 74 Haw. at 552-55, 852 P.2d at 55-56 (discussing Supreme Court opinions construing fundamental right to marry and concluding right “presently contemplates unions between men and women”). Thus, Petitioners’ citation to other examples of traditional marital principles that have collapsed over time similarly do not persuade us that the fundamental right to marry includes the freedom to choose a same-sex spouse. See, e.g., Bradwell v.
Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring) (recognizing married woman could not enter a contract without husband’s permission); Joyner v. Joyner, 59 N.C. (6 Jones Eq.) 322, 325 (1862) (“It follows that the law gives the husband power to use such a degree of force as is necessary to make the wife behave herself and know her place.”).
These shifts in principles governing marriage have involved aspects of the marital relationship that are extrinsic to its core meaning: the legal union between one man and one woman. While Loving expanded the traditional scope of the fundamental right to marry by granting interracial couples unrestricted access to the state-sanctioned marriage institution, that decision was anchored to the concept of marriage as a union involving persons of the opposite sex. In contrast, recognizing a right to marry someone of the same sex would not expand the established right to marry, but would redefine the legal meaning of “marriage.” We
therefore conclude that Loving does not mandate a conclusion that the fundamental right to choose one’s spouse necessarily includes the choice to enter a same-sex marriage.
1. Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman;
2. Other examples of traditional marital principles that have collapsed over time similarly do not create a fundamental right to genderless marriage;
3. Marriage’s core meaning is the legal union between one man and one woman;
4. The Loving analysis was anchored to the concept of marriage as a union involving persons of the opposite sex, i.e. a man and a woman. The result would have been much different if genderless marriage was the issue;
5. Recognizing a right to marry someone of the same sex would not expand the established right to marry, but would redefine the legal meaning of “marriage”;
6. Loving does not mandate a conclusion that there is a fundamental right to genderless marriage;
7. Loving dealt with an impermissible racial classification, expressly prohibited by the 14th Amendment. It did not deal with the wholesale redefinition of marriage. This is where the analogy really breaks down.
The Indiana appellate court in Morrison v Sadler also considered and rejected the interracial court case analogy:
Before considering the Plaintiffs’ contentions based on the Indiana Constitution, it is helpful to briefly mention federal law in this area as it helps explain both the Plaintiffs’ and the State’s approaches to this case. The Plaintiffs make no explicit argument that Indiana’s limitation of marriage to opposite-sex couples violates the United States Constitution. There is binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court held that a ban on same-sex marriages did not violate the Fourteenth Amendment. In so holding, the court rejected the same-sex couple plaintiffs’ principal argument that Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967), required that they be issued a marriage license. The court stated that Loving, which held bans on interracial marriages violated the Fourteenth Amendment, was decided solely on the grounds of the patent racial discrimination of such statutes. Baker, 191 N.W.2d at 187. It also stated, “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Id.
The couple appealed to the United States Supreme Court, which dismissed the appeal without opinion “for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37 (1972). Under procedural rules in effect at the time, the Plaintiffs do not contest that, unlike a denial of certiorari, such a dismissal represented a decision by the Supreme Court on the merits that the constitutional challenge presented was insubstantial, and which decision is binding on lower courts. See Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 2289 (1975). Thus, the Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment. In light of this precedent, the Plaintiffs have not made a Fourteenth Amendment argument in this case.
1. No argument that Indiana’s man/woman distinctions violated United States Constitution;
2. United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution;
3. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court held that a ban on same-sex marriages did not violate the Fourteenth Amendment. In so holding, the court rejected the same-sex couple plaintiffs’ principal argument that Loving v. Virginia;
4. In commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex;
5. The United States Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment. This is critical. This is also why genderless marriage advocates pursue state court litigation. They know they have no federal constitutional arguments to make that will carry the day in federal courts. It is also critical in that the United States Supreme Court rejects the same Loving analysis and arguments that genderless advocates make in state courts, and which the California supreme court for some reason accepted.
Another good analysis of the genderless marriage arguments is in the Washington State supreme court case of Andersen v King County. It is a long decision, but I think a good one. I want to focus on the court’s discussion of the suspect class argument raised in that case. In the California supreme court decision, it created a new suspect class, i.e., sexual orientation. Or, in other words being a member of the class of persons known as gays or lesbians confers special constitutional protections. The Washington supreme court refused to create such a new constitutionally protected class. It concluded:
In light of the lack of a sufficient showing of immutability and the overwhelming authority finding that gay and lesbian persons are not a suspect class for purposes of the equal protection clause, we decline to conclude that gay and lesbian persons constitute an inherently suspect class for purposes of article I, section 12.
I am going to post the entire discussion for those of you who have nothing better to do than read a long legal analysis of why the Washington court declined to adopt such a new constitutional class. But, I think it is well worth the read:
 ¶ 31 To qualify as a suspect class for purposes of an equal protection analysis, the class must have suffered a history of discrimination, have as the characteristic defining the class an obvious, immutable trait that frequently bears no relation to ability to perform or contribute to society, and show that it is a minority or politically powerless class. Hanson, 83 Wash.2d at 199, 517 P.2d 599; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.1990). Race, alienage, and national origin are examples of suspect classifications. City of Cleburne, 473 U.S. at 440. Suspect classifications require heightened scrutiny because the defining characteristic of the class is “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy–a view that those in the burdened class are not as worthy or deserving as others.” Id. There is no dispute that gay and lesbian persons have been discriminated against in the past.
*8 ¶ 32 The parties dispute whether homosexuality is immutable. The State relies on the decision in High Tech Gays that homosexuality is behavioral, and thus not immutable. The plaintiffs counter that the Ninth Circuit has since “corrected” High Tech Gays and held that gay and lesbian persons constitute a suspect class. They rely on Hernandez-Montiel v. Immigration & Naturalization Serv., 225 F.3d 1084 (9th Cir.2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005), where the court determined that asylum should be granted to an immigration applicant, reasoning among other things that as a gay man with a female sexual identity the applicant had a well-grounded fear of persecution as a member of a particular social group. The court concluded the applicant was a member of a particular social group because “[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Id. at 1093. This conclusion was drawn from other immigration cases and secondary authority.
¶ 33 Notwithstanding Hernandez-Montiel, the Ninth Circuit has since referenced High Tech Gays for its holding that gay and lesbian persons do not constitute a suspect class. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir.2003) (citing High Tech Gays ).
¶ 34 The plaintiffs do not cite other authority or any secondary authority or studies in support of the conclusion that homosexuality is an immutable characteristic. They focus instead on the lack of any relation between homosexuality and ability to perform or contribute to society. But plaintiffs must make a showing of immutability, and they have not done so in this case. [FN6]
¶ 35 Finally, with regard to the ability to obtain redress through the legislative process (the political powerless prong), several state statutes and municipal codes provide protection against discrimination based on sexual orientation and also provide economic benefit for same sex couples. [FN7] Recently, the legislature amended the Washington State Law Against Discrimination to prohibit discrimination on the basis of sexual orientation. Engrossed Substitute H.B. 2661, 59th Leg., Reg. Sess. (Wash.2006). In addition, the Intervenors point to evidence that a number of openly gay candidates were elected to national, state, and local offices in 2004.
¶ 36 The enactment of provisions providing increased protections to gay and lesbian individuals in Washington shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power. Indeed, the recent passage of the amendments to chapter 49.60 RCW is particularly significant given that, as the plaintiffs point out, the legislature had previously declined on numerous occasions to add sexual orientation to the laws against discrimination. We conclude that plaintiffs have not established that they satisfy the third prong of the suspect classification test.
*9 ¶ 37 Our conclusion here, that plaintiffs have not established that they are members of a suspect class, accords with the decisions of the overwhelming majority of courts, which find that gay and lesbian persons do not constitute a suspect class. See Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 818, 818 n. 4 (11th Cir.2004), cert. denied, 543 U.S. 1081, 125 S.Ct. 869, 160 L.Ed.2d 825 (2005) (concluding that gay and lesbian persons are not a suspect class and citing cases from the 4th, 5th, 6th, 7th, 9th, and 10th Circuits that have reached the same conclusion). The Second and Eighth Circuits have reached the same conclusion. Able v. United States, 155 F.3d 628, 632 (2d Cir.1998); Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir.1996). The Court of Appeals held in Singer, 11 Wash.App. 247, 522 P.2d 1187, that gay and lesbian persons do not constitute a suspect class. And even two state courts deciding that same-sex couples have a right to a civil union or marriage did not find a suspect class. Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999) (under the state constitution’s common benefits clause, plaintiffs seeking same-sex marriage are entitled to benefits and obligations like those accompanying marriage); Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003) (denial of civil marriage to same-sex couples violates state equal protection principles). And, while the plaintiffs cite cases they say hold that gay and lesbian persons constitute a suspect class, most do not support the proposition or are otherwise distinguishable. In Tanner v. Oregon Health Sciences University, 157 Or.App. 502, 971 P.2d 435 (1998), the court applied an independent analysis under Oregon’s privileges and,immunities clause and concluded that gay and lesbian persons constitute a suspect class. The analysis bears little resemblance to the analysis that applies under the equal protection clause. They cite Li v. State of Oregon, No. 0403-03057 (Multnomah County Circuit Ct.2004). But this trial court decision was reversed by the Oregon Supreme Court. Li v. State, 338 Or. 376, 110 P.3d 91 (2005). Children’s Hosp. & Med. Ctr. v. Bonta, 97 Cal.App.4th 740, 769, 118 Cal.Rptr.2d 629 (2002) does not concern any issue involving gay and lesbian persons, and says only in passing, without authority, that the issue before it did not relate to a suspect class “such as race or sexual orientation.” Baehr, 74 Haw. 530, 852 P.2d 44, has a lead opinion signed by two justices who concluded that gay and lesbian persons constitute a sex-based suspect class, a concurring opinion of one justice who concluded that a fact question existed as to whether homosexuality is biologically driven and thus a sex-based class, and a two-justice dissent that disagreed. Before the issue was resolved, the voters in Hawai’i passed a constitutional amendment leaving it to the state legislature to decide whether same-sex marriage would be allowed. [FN8] Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super.Ct. Feb. 27, 1998) is a trial court decision finding that denial of marriage to same-sex couples violated the Alaska State Constitution. The court engaged in a fundamental rights analysis but said in dicta that it would also find that gay and lesbian persons constitute a suspect class. The court did not engage in any analysis or cite any authority regarding suspect classification, however. Nine months after the decision was filed, the voters in Alaska passed a constitutional amendment defining marriage as opposite-sex marriage.
*10 ¶ 38 The plaintiffs also suggest that Miguel v. Guess, 112 Wash.App. 536, 51 P.3d 89 (2002), Romer, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855, and Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) indicate a trend toward heightened scrutiny where gay and lesbian persons are concerned. Miguel and Romer are based on another constitutional principle, however. In Romer, the Court invalidated on equal protection grounds Colorado’s constitutional Amendment 2, which prohibited all legislative, executive, or judicial action designed to protect gay and lesbian persons from discrimination. The Court noted that “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631. The Court said that Amendment 2 “fails, indeed defies” this inquiry. Id. at 632. The court noted that central to equal protection is the principle that “government and each of its parts remain open … to all who seek its assistance,” and “[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection in the most literal sense.” Id. at 633. The Court found that there was no legitimate government purpose of Amendment 2 and held the amendment did not satisfy rational relation review.
¶ 39 Similarly, in Miguel, where the plaintiff claimed her civil rights were violated as a result of discrimination based on being a lesbian, the court found that a discriminatory classification based on prejudice or bias is not rationally related to a legitimate governmental purpose as a matter of law. See also Cleburne Living Ctr., 473 U.S. at 448 (noting that while private biases may be outside the reach the law, the law cannot give them effect). Both Miguel and Romer rest on the principle that equal protection is denied where the law’s purpose is discrimination and it has no legitimate government purpose. Neither case supports the proposition that gay and lesbian persons constitute a suspect class. Indeed, as plaintiffs recognize, neither case addressed suspect classifications; the court in Miguel expressly declined to decide whether gay and lesbian persons constitute a suspect class. Miguel, 112 Wash.App. at 552 n. 3, 51 P.3d 89.
¶ 40 In Lawrence, the Court held that Texas’s sodomy law violated equal protection under a rational basis analysis, thus overruling its decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). Lawrence is widely viewed as reflecting changing societal attitudes toward gay and lesbian persons. The Court emphasized “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Lawrence, 539 U.S. at 572. However, the Court did not address suspect classification and invalidated the challenged law on the basis that it did not satisfy rational basis review, a standard that would not apply if the court had found an inherently suspect class.
*11 ¶ 41 In light of the lack of a sufficient showing of immutability and the overwhelming authority finding that gay and lesbian persons are not a suspect class for purposes of the equal protection clause, we decline to conclude that gay and lesbian persons constitute an inherently suspect class for purposes of article I, section 12.
The other critical area of discussion, one which the California supreme court essentially ignored (at least the majority–the dissent recognized the legitimate separation of powers) is the proper role of the judiciary in a constitutional system based on separation of powers and checks and balances. The court noted:
¶ 2 The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer “yes,” and we therefore reverse the trial courts.
¶ 3 In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.
¶ 4 It is important to note that the court’s role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be. United States Supreme Court Justice John Paul Stevens talked about the court’s role when he described several noteworthy opinions he had written or joined while “convinced that the law compelled a result that [he] would have opposed if [he] were a legislator.” John Paul Stevens, United States Supreme Court Justice, Judicial Predilections, Address to the Clark County Bar Association, Las Vegas, Nev. 2 (Aug. 18, 2005). As Justice Stevens explained, a judge’s understanding of the law is a separate and distinct matter from his or her personal views about sound policy. Id. at 17.
¶ 5 A judge’s role when deciding a case, including the present one, is to measure the challenged law against the constitution and the cases that have applied the constitution. Personal views must not interfere with the judge’s responsibility to decide cases as a judge and not as a legislator. This, after all, is one of the three legs supporting the rule of law. Here, the solid body of constitutional law disfavors the conclusion that there is a right to marry a person of the same sex. It may be a measure of this fact that Justice Fairhurst’s dissent is replete with citation to dissenting and concurring opinions, and that, in the end, it cites very little case law that, without being overstated, supports its conclusions.
¶ 6 Perhaps because of the nature of the issue in this case and the strong feelings it brings to the front, some members of the court have uncharacteristically been led to depart significantly from the court’s limited role when deciding constitutional challenges. For example, Justice Fairhurst’s dissent declines to apply settled principles for reviewing the legislature’s acts and instead decides for itself what the public policy of this state should be. Justice Bridge’s dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it. [FN1] Justice J.M. Johnson’s concurrence, like Justice Fairhurst’s dissent, also ignores the proper standards for reviewing legislation. And readers unfamiliar with appellate court review may not realize the extent to which this concurrence departs from customary procedures because, among other things, it merely repeats the result and much of the reasoning of the court’s decision on most issues, thus adding unnecessarily to the length of the opinions.
I realize that California’s law is ultimately what the supreme court says that it is; however, in this case, for the very reasons expressed by the dissent in the California opinion as well as the Washington Supreme Court majority, the California supreme court overstepped its bounds. It created a new fundamental right, genderless marriage, and a new suspect class, sexual orientation, when none had existed prior to the Ides of May, 2008.
My point in this post is to express that there is substantial legal authority for defending traditional man/woman marriage. Actually, it is the majority legal analysis in the country today. California is in an extreme minority legal position. Only Massachusetts and Connecticut have concluded genderless marriage is a fundamental constitutional right. Forty seven other states have not so concluded. And, many of the remaining states have constitutional amendments in place, similar to what California contemplates tomorrow.
Like the Washington Supreme Court, I believe the more sound legal position is that if there is to be a wholesale redefinition of marriage in any state, it needs to come from a majority of its citizens–not four or five supreme court justices. This was the dissent’s major argument in the California case. Interestingly, it appeared most of the justices in the California decision might have agreed with the ultimate conclusion; however, the dissent rested on the separation of powers concept that the law, if redefined, should only be done by the people.
The California Constitution does not guarantee genderless marriage. The California supreme court created that idea out of whole cloth. Cloth, that did not exist in California constitutional jurisprudence before the Ides of May, 2008. If the cloth is in fact to be made, it should be woven from within the fabric of California’s society as a whole, represented by the majority of its voters–not four members of its supreme court. This is not a debate about civil rights, equal protection or fundamental rights. In the final analysis it is really a debate about societal acceptance.