This is an update to a earlier JMBzine.com post

I’ve just finished reading/skimming the decision that struck down the gay marriage ban in California. There’s a lot there so I’m going to comment on just a few things I found interesting…

All bold-faced emphasis added below is my own. I’ll also write a short summary about each excerpt before it, and short commentary after it.

1. From the majority opinion – (the key issue here is, is it ok to have a “seperate but supposedly equal” status for gay couples?)

Accordingly, the legal issue we must resolve is
not whether it would be constitutionally permissible under the California
Constitution for the state to limit marriage only to opposite-sex couples while
denying same-sex couples any opportunity to enter into an official relationship
with all or virtually all of the same substantive attributes, but rather whether our
state Constitution prohibits the state from establishing a statutory scheme in which
both opposite-sex and same-sex couples are granted the right to enter into an
officially recognized family relationship that affords all of the significant legal
rights and obligations traditionally associated under state law with the institution
of marriage, but under which the union of an opposite-sex couple is officially
designated a “marriage” whereas the union of a same-sex couple is officially
designated a “domestic partnership.” The question we must address is whether,
under these circumstances, the failure to designate the official relationship of
same-sex couples as marriage violates the California Constitution.

The court is dead-on-the-money. The california law is trying to create a “seperate but equal” status for gay couples, which sounds a lot like the “Seperate but equal” idea of Plessy v. Ferguson.

2. From the majority opinion – (the court decides here to apply a strict scrutiny standard to the law, and decides that the law violates the standard)

Furthermore, the circumstance that the current California statutes assign a
different name for the official family relationship of same-sex couples as
contrasted with the name for the official family relationship of opposite-sex
couples raises constitutional concerns not only under the state constitutional right
to marry, but also under the state constitutional equal protection clause. In
analyzing the validity of this differential treatment under the latter clause, we first
must determine which standard of review should be applied to the statutory
classification here at issue. Although in most instances the deferential “rational
basis” standard of review is applicable in determining whether different treatment
accorded by a statutory provision violates the state equal protection clause, a more
exacting and rigorous standard of review — “strict scrutiny” — is applied when
the distinction drawn by a statute rests upon a so-called “suspect classification” or
impinges upon a fundamental right. As we shall explain, although we do not agree
with the claim advanced by the parties challenging the validity of the current
statutory scheme6 that the applicable statutes properly should be viewed as an
instance of discrimination on the basis of the suspect characteristic of sex or
gender and should be subjected to strict scrutiny on that ground, we conclude that
strict scrutiny nonetheless is applicable here because (1) the statutes in question
properly must be understood as classifying or discriminating on the basis of sexual
orientation, a characteristic that we conclude represents — like gender, race, and
religion —a constitutionally suspect basis upon which to impose differential
treatment, and (2) the differential treatment at issue impinges upon a same-sex
couple’s fundamental interest in having their family relationship accorded the
same respect and dignity enjoyed by an opposite-sex couple.

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.

A number of factors lead us to this conclusion. First, the exclusion of
same-sex couples from the designation of marriage clearly is not necessary in
order to afford full protection to all of the rights and benefits that currently are
enjoyed by married opposite-sex couples; permitting same-sex couples access to
the designation of marriage will not deprive opposite-sex couples of any rights and
will not alter the legal framework of the institution of marriage, because same-sex
couples who choose to marry will be subject to the same obligations and duties
that currently are imposed on married opposite-sex couples.
Second, retaining the
traditional definition of marriage and affording same-sex couples only a separate
and differently named family relationship will, as a realistic matter, impose
appreciable harm on same-sex couples and their children, because denying such
couples access to the familiar and highly favored designation of marriage is likely
to cast doubt on whether the official family relationship of same-sex couples
enjoys dignity equal to that of opposite-sex couples.
Third, because of the
widespread disparagement that gay individuals historically have faced, it is all the
more probable that excluding same-sex couples from the legal institution of
marriage is likely to be viewed as reflecting an official view that their committed
relationships are of lesser stature than the comparable relationships of opposite-sex
couples. Finally, retaining the designation of marriage exclusively for oppositesex
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.

3. From the majority opinion (this part gives the decision teeth, that lets the pro-gay marriage folks force local officials to follow this ruling)

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.

I’m wondering how long it will take for a California locality to start granting gay marriage licenses. I bet SF will do it by the end of the business day.

4. From a concurring/dissent opinion by Justice Corrigan

CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.
In my view, Californians should allow our gay and lesbian neighbors to call
their unions marriages. But I, and this court, must acknowledge that a majority of
Californians hold a different view, and have explicitly said so by their vote. This
court can overrule a vote of the people only if the Constitution compels us to do
so. Here, the Constitution does not. Therefore, I must dissent.

It is important to be clear. Under California law, domestic partners have
“virtually all of the same substantive legal benefits and privileges” available to
traditional spouses. (Maj. opn., ante, at p. 45.) I believe the Constitution requires
this as a matter of equal protection. However, the single question in this case is
whether domestic partners have a constitutional right to the name of “marriage.”

This is astonishing to see one of the dissenting judges say that he supports gay marriage (but won’t vote with the majority as he thinks the court is overstepping its bounds).