Whether or not you are personally interested in "gay marriage", last week was a historic moment in this country. For the first time California (a state followed by courts in almost ALL other states) not only recognized that denying marriage to people who decide to marry members of the same sex because of their sexual orientation is unconstitutional, it held, actually more importantly, that differential treatment based upon sexual ORIENTATION (rather than just on the basis of which sex you are) is a SUSPECT class in California (like race, religion, etc) and therefore any official laws or actions that have the effect of unfairly treating or affecting members of that suspect class must pass the strictest scrutiny in order to pass constitutional muster (in other words, be legal). This applies in work, governmental and most social and society settings far beyond the right to marry.
I received an e-mail with the following highlights from the court decision. It is quite interesting.
Highlights of the California State Supreme Court decision on Gay Marriage
Compiled by Carl R. Stevens
HIGHLIGHTS FROM THE CALIFORNIA STATE SUPREME COURT decision on gay marriage, May 15, 2008.
NOT A LEGAL OPINION AND NOT TO BE RELIED UPON FOR ANY LEGAL PURPOSE
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“First, we must determine the nature and scope of the “right to marry” — a
right that past cases establish as one of the fundamental constitutional rights
embodied in the California Constitution.
“We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
“As past cases establish, the substantive right of two adults who share a loving
relationship to join together to establish an officially recognized family of their
own — and, if the couple chooses, to raise children within that family —
constitutes a vitally important attribute of the fundamental interest in liberty and
personal autonomy that the California Constitution secures to all persons for the
benefit of both the individual and society.
“Furthermore, in contrast to earlier times, our state now recognizes that an
individual’s capacity to establish a loving and long-term committed relationship
with another person and responsibly to care for and raise children does not depend
upon the individual’s sexual orientation, and, more generally, that an individual’s
sexual orientation — like a person’s race or gender — does not constitute a
legitimate basis upon which to deny or withhold legal rights. We therefore
conclude that in view of the substance and significance of the fundamental
constitutional right to form a family relationship, the California Constitution
properly must be interpreted to guarantee this basic civil right to all Californians,
whether gay or heterosexual, and to same-sex couples as well as to opposite-sex
couples.
“Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official
family relationship of opposite-sex couples (marriage) and that for same-sex
couples (domestic partnership). 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.
“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.
“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 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.
“Although we concluded in Lockyer (MY NOTE: This is the case that was heard by the Supreme court in March of ’04 that initially VOIDED all of the marriages in San Francisco) that the City officials had acted unlawfully and that the same-sex marriages they had authorized were void ( My note: because California law did not permit it), as already noted our opinion made clear that the substantive question of the constitutionality of California’s statutory provisions limiting marriage to a man and a woman was not before us in the Lockyer proceeding and that we were expressing no opinion on this issue.
“Section 308.5, an initiative statute submitted to the voters of California as
Proposition 22 at the March 7, 2000, primary election and approved by the voters
at that election, provides in full: “Only marriage between a man and a woman is valid or recognized in California.” Accordingly, if section 308.5 applies to marriages performed in
California as well as to out-of-state marriages, any measure passed by the
Legislature that purports to authorize marriages of same-sex couples in California
would have to be submitted to and approved by the voters before it could become
effective…. For the reasons discussed below, we conclude that in light of both the
language and the purpose of section 308.5, this provision reasonably must be
interpreted to apply both to marriages performed in California and those
performed in other jurisdictions.
“Of course, although the Domestic Partner Act generally affords registered
domestic partners the same substantive benefits and privileges and imposes upon
them the same responsibilities and duties that California law affords to and
imposes upon married spouses, the act does not purport to (and lawfully could not)
modify the applicable provisions of federal law, which currently do not provide
for domestic partnerships and which define marriage, for purposes of federal law,
as the union of a man and a woman. (See 1 U.S.C. § 7.)
“As we explained in Koebke, supra, 36 Cal.4th 824, 843: “[T]he decision . . . to
enter into a domestic partnership is more than a change in the legal status of
individuals . . . . [T]he consequence[] of the decision is the creation of a new
family unit with all of its implications in terms of personal commitment as well as
legal rights and obligations.”
The nature and breadth of the rights afforded same-sex couples under the
Domestic Partner Act is significant, because under California law the scope of that
enactment is directly relevant to the question of the constitutional validity of the
provisions in California’s marriage statutes limiting marriage to opposite-sex
couples.
“Although our state Constitution does not contain any explicit reference to a
“right to marry,” past California cases establish beyond question that the right to
marry is a fundamental right whose protection is guaranteed to all persons by the
California Constitution. (See, e.g., Conservatorship of Valerie N. (1985) 40
Cal.3d 143, 161 (Valerie N.) [“The right to marriage and procreation are now
recognized as fundamental, constitutionally protected interests. [Citations.]
“Plaintiffs challenge the Court of Appeal’s characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs’ position. In Perez v. Sharp, supra, 32 Cal.2d 711 — this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional — the court did not
characterize the constitutional right that the plaintiffs in that case sought to obtain as “a right to interracial marriage” and did not dismiss the plaintiffs’ constitutional challenge on the ground that such marriages never had been permitted in California Instead, the Perez decision focused on the substance of the constitutional right at issue — that is, the importance to an individual of the freedom “to join in marriage with the person of one’s choice” — in determining whether the statute impinged upon the plaintiffs’ fundamental constitutional right.
“In discussing the constitutional right to marry in Perez v. Sharp, supra, 32 Cal.2d 711 (Perez), then Justice Traynor in the lead opinion quoted the seminal passage from the United States Supreme Court’s decision in Meyer v. Nebraska, supra, 262 U.S. 390. There the high court, in describing the scope of the “liberty” protected by the due process clause of the federal Constitution, stated that “ ‘[w]ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one’s own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ ”
“As these and many other California decisions make clear, the right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual.
“As noted above, past California decisions have described marriage as “the most socially roductive and individually fulfilling relationship that one can enjoy in the course of a ifetime.” (Marvin v. Marvin, supra, 18 Cal.3d 660, 684; “The ability of an individual to
join in a committed, long-term, officially recognized family relationship with the
person of his or her choice is often of crucial significance to the individual’s
happiness and well-being. The legal commitment to long-term mutual emotional
and economic support that is an integral part of an officially recognized marriage
relationship provides an individual with the ability to invest in and rely upon a
loving relationship with another adult in a way that may be crucial to the
individual’s development as a person and achievement of his or her full potential.
“Although persons can have children and raise them outside of marriage, the institution of
civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, a ready and public means of establishing to others the legal basis of one’s parental relationship to one’s children (cf. Koebke, supra, 36 Cal.4th 824, 844-845; Elden v. Sheldon, supra, 46 Cal.3d 267, 275), and the additional security that comes from the
knowledge that his or her parental relationship with a child will be afforded protection by the government against the adverse actions or claims of others.
“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 overning California cases establish that this right embodies fundamental interests of an individual that are protected from abrogation or elimination by the state. 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.
“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.
“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, 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.
“We now similarly recognize that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are
entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights.
“As noted above, our decision in Perez, supra, 32 Cal.2d 711, declining to define narrowly the right to marry, did not consider the fact that discrimination against interracial marriage was “sanctioned by the state for many years” a reason to reject the plaintiffs’ claim in that case. (Id., at p. 727.) Instead the court looked to the essence and substance of the right to marry, a right itself deeply rooted in the history and tradition of our state and nation, to determine
whether the challenged statute impinged upon the plaintiffs’ constitutional right. For similar reasons, it is apparent that history alone does not provide a justification for interpreting the constitutional right to marry as protecting only one’s ability to enter into an officially recognized family relationship with a person of the opposite sex. “[F]undamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been
denied those rights.”
“In the present context our recognition that the constitutional right to marry applies to same-sex couples as well as to opposite-sex couples does not diminish any other person’s constitutional rights. Opposite-sex couples will continue to enjoy precisely the same constitutional rights they traditionally have possessed, unimpaired by our recognition that this basic civil right is applicable, as well, to gay individuals and same-sex couples. Thus, although an
important purpose underlying marriage may be to channel procreation into a stable family relationship, that purpose cannot be viewed as limiting the constitutional right to marry to couples who are capable of biologically producing a child together. Thus, although the state undeniably has a legitimate interest in promoting “responsible procreation,” that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim
the protection of the fundamental constitutional right to marry.
“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.
“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.
“Having concluded that the California marriage statutes treat persons differently on the basis of sexual orientation, we must determine whether sexual orientation should be considered a suspect classification” under the California equal protection clause, so that statutes drawing a distinction on this basis are subject to strict scrutiny. The issue is one of first impression in California, 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.
“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.[“[s]exual orientation and sexual identity . . . are so fundamental to one’s identity that a person should not be required to abandon them”]; [“whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”].)
“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. There is no persuasive basis for applying to statutes that classify persons on
the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.
“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 nstitution 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.
“First, because of the long and celebrated history of the term “marriage” and the widespread understanding that this term describes a union unreservedly approved and favored by the community, there clearly is a considerable and undeniable symbolic importance to this designation. Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation,
realistically must be viewed as constituting significantly unequal treatment to same-sex couples.
“Second, particularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term “marriage” is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second class citizenship.
“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.
“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.
“By the same token, the circumstance that the limitation of marriage to a union between a man and a woman embodied in section 308.5 was enacted as an initiative measure by a vote of the electorate similarly neither exempts the statutory provision from constitutional scrutiny nor justifies a more deferential standard of review. Although California decisions consistently and igorously have safeguarded the right of voters to exercise the authority afforded by the initiative process (see, e.g., Associated Home Builders, etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591), our past cases at the same time uniformly establish that initiative measures adopted by the electorate are subject to the same constitutional limitations that apply to statutes adopted by the Legislature, and our courts have not hesitated to invalidate measures enacted through the initiative process when they run afoul of constitutional guarantees provided by either the
federal or California Constitution.
“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 (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment.
“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. As Chief Judge Kaye of the New York Court of Appeals succinctly observed in her dissenting opinion in Hernandez v. Robles, supra, 855 “There are enough marriage licenses to go around for everyone.” (My Note: AMEN TO THAT!)
“Further, permitting same-sex couples access to the designation of marriage will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes upon opposite-sex couples who marry. Finally, affording same-sex couples the opportunity to obtain the
designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)72 While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly
sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is
withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship.
“Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic
partnerships, there exists a substantial risk that a judicial decision upholding the
differential treatment of opposite-sex and same-sex couples would be understood
as validating a more general proposition that our state by now has repudiated: that
it is permissible, under the law, for society to treat gay individuals and same-sex
couples differently from, and less favorably than, heterosexual individuals and
opposite-sex couples.
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.
“Having concluded that sections 300 and 308.5 are unconstitutional to the extent each statute reserves the designation of marriage exclusively to opposite sex couples and denies same-sex couples access to that designation, we must determine the proper remedy.
“In view of the lengthy history of the use of the term “marriage” to describe the family
relationship here at issue, and the importance that both the supporters of the 1977 amendment to the marriage statutes and the electors who voted in favor of Proposition 22 unquestionably attached to the designation of marriage, there can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state’s general legislative policy and preference.
“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.
According to the e-mail, feel free to pass it on to others.
BUT REMEMBER IT IS NOT A LEGAL OPINION! Here is a link to entire opinion
