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... there is a Republican core to yesterday's California marriage decision. Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for liberal tendencies. (The sole appointee of Gov. Arnold Schwarzenegger was among the three justices, all Republicans, in dissent.)
It should also be noted that all seven have stood election since their appointments. Voters reconfirmed all of them, by margins of 69 percent or higher. That this court voted as it did knowing it must seek ballot approval now and again is nothing to sniff at—this is the same electorate that in 1986 recalled the state chief justice and two associate justices, following a campaign waged by Deukmejian.
Though it is tempting to suggest that the Grand, Old Party is returning to a tradition of privacy vis-à-vis the state—let's not forget that Republican appointees represented five of the seven U.S. Supreme Court Justices in the majority in Roe v. Wade (1973)—it may be premature to make such a claim. Perhaps the ruling says more about "living constitutionalism." Might it be that changes in popular attitudes toward marriage equality helped to embolden four California justices to enforce a rule that seemed to them compelled by proper interpretation of the applicable law, California's Constitution?
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The California Supreme Court has just announced its decision in the gay-marriage cases, finding that the state marriage laws that "exclude same-sex couples from access to the designation of marriage" are unconstitutional. Opinion is here.
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At 10:00 today Pacific time (that's 1:00 Eastern), the California Supreme Court will issue its long-awaited same-sex-marriage decision. (Briefs and oral argument here.) The question presented is this:
Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?
My understanding is that the issue presented in the California case is analogous to, if not on all fours with, that of the Massachusetts Supreme Judicial Court's landmark Goodridge decision—namely, whether the state constitution should be construed to require California to provide not only equal tangible rights, benefits, and responsibilities to same-sex couples (which the state law already does), but also to accord such couples the status of state-sanctioned marriage, as such. (For what it's worth, in post-Goodridge litigation in Massachusetts, professor Tribe and I filed a brief on behalf of co-blogger Kenji Yoshino and 89 other Con-law and legal history scholars, which explained, in part (see Pages 18-29), why the Massachusetts SJC that such formal "marriage" status was of constitutional significance, above and beyond equality in the state's provision of rights and privileges.)
After listening to the oral argument in the California case, Dale Carpenter predicted that the same-sex marriage proponents would lose. Perhaps more importantly, Dale, a strong prononent of same-sex marriage rights (who will not be available today to respond to the Cal Supreme Court opinions), argued that such a loss would be a "blessing in disguise for the gay-marriage movement as a whole":
On the one hand, a pro-SSM ruling from the California high court would lead to a state-wide voter initiative to amend the state constitution to ban not only gay marriage but legislatively created civil unions as well. Nobody knows how that vote would turn out, but I would not be confident of a victory for gay marriage. That has always been a serious risk of this California litigation.
Beyond California, a ruling for the SSM litigants would increase the perceived risk to legislatures in other states that if they extend domestic partnerships or civil unions to gay couples courts will use that progress as a reason to force the states to go all the way to marriage. This might make them less likely to experiment with statutes that grant some rights and protections to gay families.
On the other hand, a ruling that leaves the issue to the state legislature (which has twice voted to recognize gay marriage) and the governor (who has twice vetoed gay-marriage legislation, deferring the issue to this litigation) will mean that this issue will be resolved democratically. Either this governor or a future one will eventually sign a gay-marriage bill which, as I understand California law, means that the voters of the state will have another go at the issue. (In 2000, they voted to define marriage as the union of a man and a woman in state statute.) In that event, the issue will be presented to them in the best possible light: with the state legislature and the state governor solidly behind the change—not simply the sympathy the state's high
court.
Perhaps Carpenter's take on the case would be a good jumping-off point for any Convictions posts after the California court issues its decision in a couple of hours. For myself, although I can imagine Dale might be correct in the second paragraph above that pro-SSM decisions might deter some legislatures from enacting beneficial anti-discrimination laws, I'm not so sure about his first argument: After all, the decision in Goodridge did not result in a successful amendment to the Massachusetts Constitution "to ban not only gay marriage but legislatively created civil unions as well." (On the other hand, the politics and mechanisms of constitutional amendment in California might be very different from those in Massachusetts, in a way that makes this litigation much riskier.)
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