Anticipating Today's Same-Sex Marriage Decision in California

Slate's blog on legal issues.
May 15 2008 11:01 AM

Anticipating Today's Same-Sex Marriage Decision in California

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?

Advertisement

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.)

TODAY IN SLATE

Sports Nut

Grandmaster Clash

One of the most amazing feats in chess history just happened, and no one noticed.

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

The NFL Explains How It Sees “the Role of the Female”

Amazon Is Officially a Gadget Company

Sports Nut

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Food

How to Order Chinese Food

First, stop thinking of it as “Chinese food.”

Scotland Is Inspiring Secessionists Across America

The Country Where Women Aren’t Allowed to Work Once They’re 36 Weeks’ Pregnant

The XX Factor
Sept. 18 2014 11:40 AM The Country Where Women Aren’t Allowed to Work Once They’re 36 Weeks’ Pregnant
Moneybox
Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
The World
Sept. 18 2014 1:34 PM Americans Fault Obama for Giving Them Exactly the Anti-ISIS Strategy They Want
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
The Eye
Sept. 18 2014 12:47 PM How One of the Most Prolific Known Forgers in Modern History Faked Great Works of Art
  Double X
The XX Factor
Sept. 18 2014 12:03 PM The NFL Opines on “the Role of the Female”
  Slate Plus
Behind the Scenes
Sept. 18 2014 1:23 PM “It’s Not Everyday That You Can Beat the World Champion” An exclusive interview with chess grandmaster Fabiano Caruana.
  Arts
Brow Beat
Sept. 18 2014 1:47 PM The Only 15 Netflix Hacks You’ll Ever Need
  Technology
Future Tense
Sept. 18 2014 1:24 PM Can the Celebrities Whose Photos Were Stolen Really Sue Apple? It may be harder to prove “harm” than it seems.
  Health & Science
Bad Astronomy
Sept. 18 2014 7:30 AM Red and Green Ghosts Haunt the Stormy Night
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.