California Court rules Same-Sex Marriage ban Unconstitutional

How cool is this?  I haven’t seen any legal analysis of the majority opinion (Author: GEORGE, C. J., Concurring: KENNARD, J. WERDEGAR, J., MORENO, J.) yet, after all it is 172 pages long , but if you are not interested in the details, here is the important part:

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand. Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs. The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further action consistent with this opinion.

It sounds like the California Supreme court just told plaintiffs (same-sex couples) that after they file a writ of mandate same-sex couples can legally marry in the state of California!

For anyone interested in the points that were made in the opinion, I extracted a few of them that I found significant below:

Calling same-sex relationships by another name than marriage impinges on right to marry:

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

Find that there is no compelling state interest in treating opposite-sex and same-sex couples differently:

Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification 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. Applying this standard to the statutory classification here at issue, 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.

Their reasons were many, but the last seems most compelling:

Finally, retaining 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. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

It’s good to see that in California they read the issue broadly as the “right to marry” and not narrowly as in Washington State as “the right to same-sex marriage”:

Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords 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.34 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.”

It sounds like they court is saying that the legislature can’t make the right to marry go away without changing the constitution:

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.41 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.

The right to marry includes all couples:

In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.44

Talking about the unjust history and how society learns over time:

There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation,46 and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.47

Acknowledging the fallacy of the procreative ability argument as a litmus test for marriage:

The Proposition 22 Legal Defense Fund and the Campaign agree that the constitutional right to marry is integrally related to the right of two persons to join together to establish an officially recognized family, but they contend that the only family that possibly can be encompassed by the constitutional right to marry is a family headed by a man and a woman. Pointing out that past cases often have linked marriage and procreation, these parties argue that because only a man and a woman can produce children biologically with one another, the constitutional right to marry necessarily is limited to opposite-sex couples. This contention is fundamentally flawed for a number of reasons. To begin with, although the legal institution of civil marriage may well have originated in large part to promote a stable relationship for the procreation and raising of children (see, e.g., Baker v. Baker, supra, 13 Cal. 87, 103 [“the first purpose of matrimony, by the laws of nature and society, is procreation”]; see generally Blankenhorn, The Future of Marriage (2007) pp. 23-125), and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions (see, e.g., Valerie N., supra, 40 Cal.3d 143, 161; Skinner v. Oklahoma (1942) 316 U.S. 527, 541), the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children. Men and women who desire to raise children with a loved one in a recognized family but who are physically unable to conceive a child with their loved one never have been excluded from the right to marry.
[…]
The personal enrichment afforded by the right to marry may be obtained by a couple whether or not they choose to have children, and the right to marry never has been limited to those who plan or desire to have children. Indeed, in Griswold v. Connecticut, supra, 381 U.S. 479 — one of the seminal federal cases striking down a state law as violative of the federal constitutional right of privacy — the high court upheld a married couple’s right to use contraception to prevent procreation, demonstrating quite clearly that the promotion of procreation is not the sole or defining purpose of marriage.

Expanding the right to marry and create families to include same-sex couples and their children:

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.52

Blowing a hole in the argument that calling our relationships “domestic partnerships” would be fair and equal with the obvious example:

Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry. As observed by the City at oral argument, this court’s conclusion in Perez, supra, 32 Cal.2d 711, that the statutory provision barring interracial marriage was unconstitutional, undoubtedly would have been the same even if alternative nomenclature, such as “transracial union,” had been made available to interracial couples.

Laying the “but you can marry – only a person of the opposite sex” argument to rest and calling it what it is – discrimination:

A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation. In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation. Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation. (Accord, Johnson Controls, Inc. v. Fair Employment and Housing Com. (1990) 218 Cal.App.3d 517, 533, 541, fn. 7.)
[…]
The issue is one of first impression in California,61 however, and for the reasons discussed below we conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.

Rebutting the old canard of immutability and sexual orientation with my favorite argument - religion:

We disagree, however, with the Court of Appeal’s conclusion that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” Although we noted in Sail’er Inn, supra, 5 Cal.3d 1, that generally a person’s gender is viewed as an immutable trait (id. at p. 18), immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. California cases establish that a person’s religion is a suspect classification for equal protection purposes (see, e.g., Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 128; Williams v. Kapilow & Son, Inc. (1980) 105 Cal.App.3d 156, 161-162), and one’s religion, of course, is not immutable but is a matter over which an individual has control. (See also Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 292 [alienage treated as a suspect classification notwithstanding circumstance that alien can become a citizen].) Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.
[…]
In sum, we conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution’s equal protection clause.

Access to Domestic Partnership isn’t good enough:

Plaintiffs contend that in the present context, the different nomenclature prescribed by the current California statutes properly must be understood as having just such a constitutionally suspect effect. We agree with plaintiffs’ contention in this regard. Although in some contexts the establishment of separate institutions or structures to remedy the past denial of rights or benefits has been found to be constitutionally permissible,65 and although it may be possible to conceive of some circumstances in which assignment of the name “marriage” to one category of family relationship and of a name other than marriage to another category of family relationship would not likely be stigmatizing or raise special constitutional concerns,66 for a number of reasons we conclude that in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.

The court accepted that the right to privacy argues against separate but equal solutions:

Under these circumstances, we conclude that the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.

In addition, plaintiffs’ briefs disclose a further way in which the different designations established by the current statutes impinge upon the constitutionally protected privacy interest of same-sex couples. Plaintiffs point out that one consequence of the coexistence of two parallel types of familial relationship is that — in the numerous everyday social, employment, and governmental settings in which an individual is asked whether he or she “is married or single” — an individual who is a domestic partner and who accurately responds to the question by disclosing that status will (as a realistic matter) be disclosing his or her homosexual orientation, even if he or she would rather not do so under the circumstances and even if that information is totally irrelevant in the setting in question.68

Because the constitutional right of privacy ordinarily would protect an individual from having to disclose his or her sexual orientation under circumstances in which that information is irrelevant (see, e.g., People v. Garcia, supra, 77 Cal.App.4th 1269, 1280; Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1140-1141), the existence of two separate family designations — one available only to opposite-sex couples and the other to same-sex couples — impinges upon this privacy interest, and may expose gay individuals to detrimental treatment by those who continue to harbor prejudices that have been rejected by California society at large.

For all of these reasons, we conclude that the classifications and differential treatment embodied in the relevant statutes significantly impinge upon the fundamental interests of same-sex couples, and accordingly provide a further reason requiring that the statutory provisions properly be evaluated under the strict scrutiny standard of review.

Acknowledging that tradition hasn’t prevented us from addressing injustices in the past:

Although the understanding of marriage as limited to a union of a man and a woman is undeniably the predominant one, if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage,71

No compelling state interest in limiting access to marriage:

After carefully evaluating the pertinent considerations in the present case, we conclude that the state interest in limiting the designation of marriage exclusively to opposite-sex couples, and in excluding same-sex couples from access to that designation, cannot properly be considered a compelling state interest for equal protection purposes. To begin with, the limitation clearly is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples. Extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children.
[…]
In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.73

Congratulations to folks in California! Now the battle moves to opposing the ballot initiative that would modify the state constitution to ban same-sex marriage.

Building Sold: Monsoon to leave 19th?

I normally leave things like this to the neighborhood blogs, but I’ve known about this for several weeks and still none of them have said a thing so….

The building that houses neighborhood favorite Monsoon has been sold to a large development company.  The word is that the developer will be redeveloping the site when the current brace of leases expire in little more than a year.

Apart from the regular concerns about architecture and the size of the building, neighborhood impact of construction, and what it will be used for (more condos, additional ground level retail), it means that Monsoon will be homeless while this happens, and will likely be forced to move out of our neighborhood altogether.

From what I’ve heard, the entire building has been sold (the area below in red) and Monsoon (shown in blue) is just one of the tenants that will be affected.

It’s a tough situation for Eric, Sophie and the rest of the Banh family who own and run Monsoon.  The expense of moving and getting set up in a new space is significant and no business wants to do that more often than they need to.  Unless the developer’s plans make allowances for Monsoon and find a way to work around them, in a little over a year we’ll lose Monsoon to some other location.

If it looks like that will happen I think people in the neighborhood will be even more keenly interested in the plans for the project and it’s long and short term impact on where we live.

Anti-discrimination now. Equality when?

The Australian Government has finally set a timetable for when it will remove anti-gay discrimination from more than 100 pieces of federal legislation.  Legislative changes will begin their passage through parliament in May 2008 with the goal that all the planned changes will take effect by the middle of 2009.

The announcement signals that the Rudd Labor Government will keep it’s election promise to remove financial and entitlement discrimination against same-sex couples.  This occurs after some scare tactics on budget funding from some quarters stating that the proposed changes might carry a price tag as high as $500,000,000. The sub-textual argument being that cost would be an acceptable reason to derail these changes.

There have been so many stories written on this move by the government that it is hard to wade through them all.  For a sample, I recommend ”Gay rights a critical first step in ending discrimination", this Rodney Croome Op-Ed piece, and ”Reforms for gays are ‘incomplete’ ” as a good start.

I'm pleased that the Australian government has finally addressed the “back-office” component of discrimination. I think of this as the largely financial kind that same-sex couples fret about in private over the kitchen table doing financial planning, monthly budgets and at tax time.

It’s disappointing that the government missed the opportunity to address the equally vital “front-office” elements of discrimination. These are the things that affect how same-sex couples are permitted take part in society, present themselves in the human family, and how they are treated by society.

They aren’t considered legitimate couples or families because they can’t be married, can’t adopt, and can’t get access to IVF technology like everyone else.

I read the following from a Reuters article covering the changes with some shock, but little surprise:

"The government believes that marriage is between a man and a woman so it won't amend the marriage act," Attorney-General Robert McClelland said on Wednesday in announcing the changes.

"But in all other areas that we've identified, the issue of discrimination against same-sex couples will be removed," McClelland told reporters.

Stop and read that again because, like the Purloined Letter, the truth is hiding in plain sight.

The Australian Attorney-General publicly recognized that by failing to change the Marriage Act to include same-sex couples, Australia still discriminates against same-sex couples.

He doesn’t seem quite as aware that discrimination on adoption and access to IVF technology also remains.

As an Australian living abroad who has been in a same-sex relationship for almost 10 years, I want to know if an existing marriage, civil union, or domestic partnership from another jurisdiction means that's I'm covered.

I’ll take these rights, as soon as it’s clear how I get access to them, but it’s plain that even once these changes are enacted I’ll still be discriminated against. 

And according to Prime Minister Rudd and Attorney-General McClelland, that’s just they way they want it.

Aussie Footballer Champions a fair go for Gay and Bi players

Former St Kilda captain and current director of the St Kilda Football Club, Nathan Burke has joined forces with activist Rob Mitchell and the Victorian Minister for Youth and Sport, James Merlino to propose that the Australia Football League (AFL) ban attacks on gay and bi-sexual players.

But the proposed changes go further than just addressing discrimination in Australian Rules Football.

From the Melbourne Star:

A group of experts from the RJM Trust, set up by former local football club president Rob Mitchell to lobby for anti-discrimination guidelines, met the Minister for Youth and Sport James Merlino last week.

The group successfully securing the introduction of anti-discrimination measures on the grounds of sexual orientation in all sports in Victoria.

Experiences in the recent past of racial and religious vilification on the paddock raised more general awareness of discrimination in sport.  But over the long haul, awareness won’t be enough:

Burke also stressed the need for a system of sanctions and penalties, saying that some people would change as a result of education but others would need disciplinary measures before they would take notice.

That was how measures to combat racial and religious discrimination had worked, he said.

“They went down a three-pronged path: one was that they put in regulations, then they had a couple of high profile Aboriginal players like Nicki Winmar and Michael Long to keep it front of mind. And thirdly they had education,” he told bnews.

“Eventually through the education process it started to change attitudes and then over 10 years new players came in and they saw that attitudes had changed, and it wasn’t OK to call someone a racial or religious name. So that’s how cultural change happened, slowly, over 10 years.”

It’s great to see that Victoria is going after not just the biggest sport in the state, but all sports.  With efforts like this, perhaps we’ll see more professional athletes coming out.  If that happens, many young sportsmen and women will come out earlier in their sport as well.

After all, Ian Roberts can’t be the only gay man in Australian football.

Related Posts:

Footballers, Gays and Sperm

Hutch opposes disruption by creating chaos

The Day of Silence as come and gone at Mount Si High School in Snoqualmie, Washington.

I decided to sit out the denouement of this manufactured drama and didn’t write about it.  I made a conscious decision in this case not to add to the ego stroking column inches that Reverend Hutcherson needs to thrive.

That doesn’t mean I haven’t read just about everything that has been written about it.  It was while reading this blog post over at Through a Glass Dimly that I realized the lurking irony of the whole scene.

I captured the thought in a comment that read, in part:

It amuses me that Hutcherson and the "Coalition to Defend Education" used the argument that the Day of Silence disrupted the school day when kids should be getting their education.  After all, education is the point of attending school, right?

Yet in reality, students at Mount Si High School participating in the Day of Silence were required to speak if called on in class.  Their commitment was to avoid only unnecessary talking. 

Look, no educational disruption!

But then again, maybe not.  In response to urging by Hutcherson the parents of between 500 and 600 children kept them home from school on the Day of Silence.  Some as a protest, but some because they didn't want to be at the school and forced to take a position on the controversy. 

If the meta-point Hutch and Co. wanted to make was that events like the Day of Silence shouldn't be allowed because of the alleged "disruption" that they cause, then creating an actual disruption and causing more than 500 kids to miss a day of school seems like a mammoth failure and more than a little hypocritical.

But, as we have all come to learn, failure and hypocrisy are Hutcherson's chief stock in trade.