In re Marriage Cases

Yesterday, the California Supreme Court struck down a statutory regime that gave same-sex couples essentially the same rights and duties as married couples, but called them “registered domestic partners” instead of “married couples.” This, the court said, violates the equal protection clause of the California Constitution.

The court did not say whether same-sex couples should be allowed to marry and have their relationship called and recognized as a “marriage.” As the court pointed out on pages 4 and 5 of the slip opinion:

It . . . is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.

Nor did the court say anything about the federal Constitution. This decision was based solely on rights under the California Constitution.

The court also did not invalidate the will of the people, even though some people mistakenly think so:

In this case the people of California spoke clearly, when in 2000, 60% of the people voted for a proposition that recognized marriage as between a man and a woman. Now 4 Supreme Court justices make a ruling which overturns the expressed wishes of a state of over 36 million people.

Sorry, but that’s what you might call a half-truth. I.e., not the truth. Also known as a “falsehood.” 

In its opinion, the court addressed this point. On page 113 of the slip opinion, the court explained:

Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in [California Family Code] section 308.5 because that statute — having been adopted through the [voter] initiative process — represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process.

Yes, California voters approved a ballot initiative that made Family Code section 308.5 the law in California. (In case you’re wondering, that section says: “Only marriage between a man and a woman is valid or recognized in California.” In this case, the court was considering a group of code sections, of which that was only one.) But the ballot initiative did not change the California Constitution. Voters in this state can use the initiative process to change the Constitution. (Either of the two propositions on the upcoming June 3 ballot would amend the California Constitution if approved.) And as the court pointed out in the paragraph excerpted above, while section 308.5 was approved by the voters and therefore represents an expression of the people’s will, it remains subject to the ultimate expression of the people’s will, the state constitution.

Essentially, yesterday’s opinion told the people of California, “The only way you can discriminate against gay people is by amending your state constitution to make an exception to the equal protection clause.” (I’ll adopt the word “gay” the same way the court did in footnote 5 of its opinion: “For convenience and economy of language, in this opinion we shall use the term ‘gay,’ with reference to an individual, to relate either to a lesbian or to a gay man, and the term ‘gay couple’ to refer to a couple consisting of either two women or two men.”)

In my opinion that is not, as some people say, “legislating from the bench.” It is simply judicial review, which Chief Justice of the United States Supreme Court John Marshall explained quite well in 1803:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Marbury v. Madison, 5 U.S. 137, 177-178 (1803).

In yesterday’s decision, the California Supreme Court had to decide between the law of the California Family Code, which said that same-sex couples can have substantially the same rights as married couples, but that they cannot be called “married couples” under the law, and the California Constitution, which says “[a] person may not be . . . denied equal protection of the laws.” (Cal. Const., art I, § 7.)

Or, to put it another way, the court had to decide whether telling gay people that they can have substantially the same thing as married people, but that they have to be called “registered domestic partners” instead of “married people,” denies them equal protection of the laws.

You might disagree with the outcome of their decision, but you should see that when the question is posed, the court has to come up with an answer. That is not legislation, but adjudication. It can say, as it did, “Yes, that denies gay people equal protection,” or it can say, “No, that does not deny them equal protection.”

If you want to argue instead that the court does not need to come up with an answer, then you might say something like this: “The court should decline to answer this question. Deciding whether gay people should be allowed to get married is a political question, not a legal one. It should be decided by the legislature, or by the voters with a ballot measure.”

The problem with that argument, however, is that the court did not decide whether gay people should be allowed to get married. In fact, if you remember the passage I quoted above, you’ll recall that the court specifically did not answer that question. The only question answered by the court in yesterday’s opinion is whether gay people are denied equal protection of the laws when they are given substantially the same rights as married people, but not legally recognized as “married” people.

The opinion was about the label, not about the substance. Why? Because the California legislature already decided the substance when it enacted Family Code section 297.5, subdivision (a):

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

The issue before the court in yesterday’s opinion was not whether gay couples should have all those rights, protections, and benefits provided by section 297.5, but whether, once giving them those things, they can still be called “registered domestic partners” without denying them equal protection of the laws.

California’s Supreme Court did not override the will of the people; it simply looked at two different expressions of the people’s will and decided that the constitutional expression trumped the statutory expression, which is entirely proper.