Summary of the main opinion in the California marriage decision:
pp. 1-12: intro; summary of the conclusion.
pp. 12-18: history of the litigation, which began in 2004.
pp. 19-22: procedural point on the mootness of a challenge involving a previous stay.
pp. 23-28: history of California marriage statutes from 1849 to 1992.
pp. 28-36: discussion of whether Prop 22, passed in 2000, was intended to ban same-sex marriages from being performed in the state, or just to ban recognition of same-sex marriages performed out of state. The court says: both, therefore this case involves a challenge to Prop 22 as well as to legislatively-enacted marriage statutes.
pp. 36-47: history of California’s domestic partnership legislation as it evolved from 1999 to present.
p. 48: intro to substantive discussion.
pp. 49-51: beginning of discussion of marriage as a fundamental right; the right touches on liberty and privacy/autonomy.
pp. 51-53: The proper scope of analysis is the fundamental right to marry, not the fundamental right to same-sex marriage:
[Plaintiffs] are not seeking to create a new constitutional right — the right to “same-sex marriage†— or to change, modify, or (as some have suggested) “deinstitutionalize†the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords to opposite-sex couples.
pp. 53-66: examination of the nature and substance of the interests that the right to marriage protects. Marriage has both societal and individual benefits.
pp. 66-72: the state constitution guarantees this fundamental right to everyone, regardless of sexual orientation.
pp. 72-79: procreation is irrelevant to the right of marriage. Married couples are not required to have children (pp. 73-77); some couples raise their non-biological children (couples who adopt; same-sex couples) (pp. 77-78); conclusion of fundamental-rights analysis.
pp. 80-82: the word “marriage” is important here because opposite-sex couples have been allowed to use it but same-sex couples have not.
pp. 82-84: beginning of equal protection analysis; what standard of review is appropriate: rational-basis scrutiny (where discriminated party has burden of proof), or strict scrutiny (where discriminator has burden of proof)?
pp. 85-93: same-sex marriage discrimination cannot be considered sex discrimination, so no strict scrutiny on that basis.
pp. 93-95: same-sex marriage discrimination is discrimination on the basis of sexual orientation.
pp. 95-101: sexual orientation discrimination deserves strict scrutiny because it is a suspect classification (first time CA Supreme Court has stated this! yay!).
pp. 101-106: the classification also impinges on a fundamental right, marriage; this is a further reason why strict scrutiny is required.
pp. 106-119: under strict scrutiny analysis, the discrimination — denying same-sex couples the right to marry — is unconstitutional because it is not a necessary classification that furthers a compelling government interest, as follows:
pp. 107-108: the CA constitution does not require that marriage be limited to a man and a woman.
pp. 108-111: courts are not precluded from weighing in on the matter but rather are obligated to do so.
pp. 111-114: laws passed by popular initiative are not exempt from constitutional scrutiny, because a constitution is a higher expression of the people’s will than a popular initiative.
pp. 114-116: historic and well-established nature of the marriage discrimination is not compelling, because values can change over time, as has been shown with other issues.
pp. 116-119: allowing same-sex couples to get married does not harm opposite-sex couples or their children, and it does help same-sex couples and their children; therefore, no compelling interest in marriage discrimation against same-sex couples.
pp. 119-121: what is the proper remedy: deny marriage rights to everyone, or extend marriage rights to same-sex couples? The latter. The marriage limitation as set forth in state law and in Prop 22 falls. State officials are ordered to take all actions necessary to effectuate this ruling.
pp. 119-121: what is the proper remedy: deny marriage rights to everyone, or extend marriage rights to same-sex couples? The latter.
This is what I most passionately disagree with. The proper remeedy is to abolish this suppurating sore called “civil marriage” altogether.
There is no “fundamental right to marry.” It is a social construct. There are fundamental rights to privacy, personal liberty, and property. One has the fundamental right to establish a home and mingle property with one individual or two or ten — yet this “right to marry” only permits two individuals to form such a union. This is an unjustified restriction on the individual’s fundamental rights of free association and property, as well as an unjustified social recognition of one form of domestic organization over others.
In that case, why don’t you think the proper remedy would be to allow groups of any size to get married, rather than to prevent anyone from doing it? I don’t see how the remedy for a “restriction on fundamental rights of free association” is to reduce that right even further.
Resentment, bitterness, and misanthropy, I guess.
I would actually prefer the ability to form domestic corporations with as many partners of any gender as one chooses.
But that would also entail getting rid of marriage and all the patriarchal baggage that goes along with it.