The Iowa Supreme Court has ruled, unanimously, that banning same-sex marriage violates the Iowa constitution. Unanimously! Iowa!
See, New York Court of Appeals? See, New Jersey Supreme Court? That’s how it’s done.
And now I’d love to rewrite the “The Music Man” to make it a gay romance. Darien the Librarian, anyone?
The Iowa Supreme Court will issue its ruling on the constitutionality of same-sex marriage tomorrow morning. Iowa apparently has no residency requirement for marriage.
The opinion will likely be posted here around 8:30 a.m. Central Time.
Obama and Biden visited the U.S. Supreme Court today at the invitiation of the Chief Justice. Here’s an account of the visit.
And the Obama transition team has released some photos of the visit. It’s weird to see Clarence Thomas and Barack Obama in the same room. I don’t know why. I guess I have it in my head that Thomas loathes the guy. (Which may very well be true, but who knows.)
Here’s a historical look at the moment when the Chief Justice of the United States swears in a president, and how it can sometimes be awkward.
Supreme Court overturns Bush v. Gore.
(Yeah, it’s a joke.)
By 4:30 p.m., his 15 cabinet appointees had been vetted, contacted, and brought to Washington, where they were all simultaneously approved by a majority vote in the Senate.
Gore then delivered the first of seven consecutive State of the Union addresses.
On this Christmas Eve, Al Franken seems all but certain to become the senator-elect from Minnesota, thanks to a decision today from the Minnesota Supreme Court.
One year ago tonight, I saw Al Franken while walking down Broadway.
You’ve come a long way, baby!
Vacant U.S. Senate seats are in the news lately. Obama, Biden, and Clinton are all leaving office; Illinois legislators are talking about passing a law to prevent Gov. Blagojevich from appointing Obama’s replacement; and if Ted Stevens had been re-elected, he might have been expelled, leaving a vacancy to be filled.
It all got me wondering why there’s no uniform method for filling a vacancy. Each state has its own law for replacing a senator; most states require the governor to appoint a replacement, but some states limit that power, requiring the replacement to be from the same party as the vacater and/or requiring the governor to choose from a short list. And some states don’t let the governor make the appointment at all, requiring a special election instead. This leads to lots of confusion; for example, many people thought that Sarah Palin could have appointed herself to replace Ted Stevens if he was expelled, but it turns out that Alaska requires a special election to fill a vacant seat.
So where did this craziness come from, especially given that the U.S. Supreme Court ruled in 1995 that states aren’t allowed to set term limits for their U.S. senators?
Well, I did some googling and it turns out that it comes from the Seventeenth Amendment. This is commonly known as the amendment that required U.S. senators to be elected by the people instead of being chosen by state legislatures. But the amendment’s second paragraph states:
When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
So, although the people must eventually vote in special elections to fill Senate vacancies, state legislatures can empower the governor to fill those vacancies temporarily. Hence, state-by-state differences in how the process unfolds.
This has been another episode of “Answers to Questions You Didn’t Ask.”
(P.S. Here are all the state statutes and relevant federal statutes and constitutional clauses. Found here.)
A few weeks ago I wrote about the lawsuits that have been filed against Prop 8. The lawsuits made me uneasy. I wrote:
I don’t think this is a good idea. Not only is it awful public relations, but it will probably lose.
Well, I’ve changed my mind. I actually changed my mind a week or two ago. Here’s why.
First, I’ve decided that it’s not necessarily a losing proposition after all. The cramped legal reasoning I linked to on volokh.com ignores the following: if a bare majority of Californians can vote to strip a constitutionally protected right from one minority group, what’s to stop them from stripping a constitutionally protected right from another minority group? One of the points of a constitution is to prevent majorities from taking away certain rights of minority groups. Simply put: if a majority can take away your rights, then you have no rights to begin with. An unprotected right is an oxymoron.
Second, it might not be awful public relations, and even if it is, who the hell cares? If the California Supreme Court throws out Prop 8, what can the anti-marriage crowd do? The state legislature won’t ban same-sex marriage; it’s already twice passed bills to legalize it, only to be vetoed by Schwarzenegger because he said, nonsensically, that the decision should be left to the courts. There’s not going to be a Federal Marriage Amendment to ban same-sex marriage nationwide: if it couldn’t even muster the necessary 2/3 of the House and Senate under Republican control, it’s not going to happen under Democratic control. (More here. I disagree with Andrew Sullivan on this. His reader is right.)
There’s still an iffy chance of success. But it’s possible the California Supreme Court will make the right decision. I hope so.
I’m really worried that California Prop 8 will pass on November 4, writing marriage discrimination into the California constitution. Election Night could be bittersweet in California, as Obama wins but marriage equality loses. The polls right now don’t look good.
If Prop 8 passes, then same-sex marriage rights in California are gone for good — unless the U.S. Supreme Court someday rules on the issue, or future California voters someday amend the state constitution in the other direction.
I don’t live in California, of course, but I know at least one couple who does, and there are more than 100,000 others.
I don’t know what to do, other than donate money. I was reluctant to donate, because I thought, what can my own little contribution do?
But I’ve decided I have to donate to this. I’ve never donated to a political cause before. I didn’t even donate to Obama, although I thought about it last spring.
But this cannot pass.
My contribution alone won’t affect things, but combined with the contributions of others, it might.
Please donate to help defeat Prop 8. I just did.
Sometimes when I can’t sleep at night I list all the U.S. presidents in order of service.
Last night I was wondering, who is the most obscure U.S. president? The one that nobody remembers?
I have my choice, which might not be shared by everyone, since I know a lot about the presidents.
My first instinct is to say Millard Fillmore. But it can’t be him, because he’s the stereotypical obscure president. If asked to name an obscure president, everyone would name Fillmore. He’s known for being obscure. Therefore, paradoxically, it can’t be him.
It can’t be 20th-century president, because they’re all too familiar to us.
It can’t be any president who was assassinated or died in office, because they’re remembered for that exact reason. So William Henry Harrison, James Garfield, and William McKinley are out. Harrison had the shortest presidency — about a month — but he’s remembered for that very reason.
It can’t be any of the Founding Father presidents — except maybe James Monroe. But the Monroe Doctrine is named after him. So while he’s a good candidate for most obscure, he’s not ideal.
It might be Rutherford B. Hayes, except that eight years ago, everyone was comparing the Bush-Gore deadlock to the Hayes-Tilden deadlock that ended up in the Supreme Court. So he’s out.
James Buchanan is typically ranked as one of the worst presidents, so he has a reason to be remembered. It can’t be Buchanan.
Franklin Pierce came just before Buchanan; while he’s one of the most obscure, he still gets paired with Buchanan a lot. So it’s not Pierce.
For me it comes down to two presidents, but one has a slight edge. The second-most obscure, I think, is Chester A. Arthur, who took over after Garfield was assassinated. Few people seem to remember President Arthur. But the thing that holds him back from being most obscure is that he’s one of the “bearded presidents,” the presidents of the Gilded Age, who all seem to run together. When looking for obscure presidents, people often look to this group. So Arthur has a disadvantage similar to that of Millard Fillmore.
My ultimate choice for most obscure U.S. president?
Why Tyler, especially since his name is part of a famous political slogan — “Tippecanoe and Tyler Too”?
I don’t know. I just always forget about him.
First, he has such an ordinary name. John Tyler. He could be the guy across the street.
Tyler became president when William Henry Harrison died. It was the first time a vice president had taken over, and people didn’t know what to call him at first. Acting President? Vice President, but with presidential duties? Or just plain President? He became President Tyler, and ever since, all presidents who took office due to the death of another have assumed the full powers of the office.
Harrison had been a Whig, but Tyler was a Whig in name only. He was really a Democrat at heart, and he only became a Whig in order to be named as Harrison’s running mate. (Harrison, who was from Ohio, named Tyler, a Virginian, to help balance the ticket between North and South.) After Tyler became president, he went back on everything the Whigs wanted.
John Tyler: my choice for most obscure U.S. president.
Okay, I’m tired of writing about Sarah Palin. I’m tired of thinking about Sarah Palin. I want her to go away. But she won’t go away.
I don’t know what to make of her speech last night. She sure fired up the base. There’s no chance she’d leave the ticket now — she’s all in. Miers’s Supreme Court nomination tanked only because she lacked base support; the far right didn’t care a whit that she was unqualified to be on the Court. But Palin, they love her. And, of course, they don’t care a whit that she’s unqualified to take over the U.S. presidency.
Anyway, her speech seemed kinda… nasty. Negative. Snide. I don’t see how it wins over swing voters. I understand that sometimes the VP candidate is supposed to be the attack dog, but it didn’t sit right. It seemed like something from Fox News. I thought to myself, You’ve got some nerve, lady, giving a speech like this. Nobody knows anything about you except these tabloidesque revelations that have dribbled out over the last few days, and this is the speech you give?
She’s definitely got chutzpah. But that seems to be it.
And when you combine it with Nosferatu’s Giuliani’s speech, wasn’t last night all very Pat Buchanan 1992? And apparently Rudy’s speech ran long, so they had to cut out Palin’s biographical film in order to stay in prime time. But it went past prime time anyway.
I swear, I fear and loathe this woman. I don’t know what it is.
The problem with constitutional interpretation is that we often confuse the question of what the law should be with the question of what the Constitution says the law is. Non-lawyers often confuse their policy preferences with constitutional interpretation. Actually, legal scholars do it too. Otherwise there would be no such things as 5-4 Supreme Court decisions.
Therefore, when you take a complicated issue, such as gun control, where there are decent arguments on both sides, and you throw in the task of trying to interpret a constitutional provision that is both (1) written in eighteenth-century language and (2) confusingly worded even for the eighteenth century, it’s easy to throw your hands up and say, “How the hell do I know?”
That’s what I sometimes do.
A couple of weeks ago, Justice Scalia, in dissenting from the Supreme Court decision stating that Guantanamo detainees have habeas corpus rights, lamented that the ruling “will almost certainly cause more Americans to be killed.”
Today he wrote an opinion finding a broad right to own handguns, a decision that, one could argue, “will almost certainly cause more Americans to be killed.”
Maybe, maybe not, but thanks to Slate for pointing out the contradiction. If it is one.
I don’t know whether the ruling is correct or not. The opinion and two dissents run to more than 150 pages, and they’re unusually chock-full of scholarly, historical analysis. And we’re talking about a sentence that was written more than 200 years ago in a vastly different world with vastly different writing styles and vastly different guns.
This is what happens when you try to interpret one of the world’s oldest functioning constitutions. Do other countries, with newer constitutions, have this problem? Do other countries’ judges have to interpret such sentences as, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”? Let alone the crappy sentence structure, what do the individual words mean?
It’s worth noting that the D.C. law at issue was pretty extreme. It banned the possession of handguns in your own home, and all other types of guns in your home had to remain either unloaded and dissassembled or bound by a trigger lock or similar device. The majority opinion has narrow effect — it strikes down this law, but it doesn’t discuss other types of gun laws, including that prevent criminals or the mentally ill, etc., from having guns.
Scalia ends his opinion as follows:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
What happens if we change a few words?
We are aware of the problem of terrorism in this country, and we take seriously the concerns raised by the many amici who believe that the stripping of habeas corpus rights is a solution. The Constitution leaves the government a variety of tools for combating that problem… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the stripping of habeas corpus rights except in times of rebellion or invasion. Undoubtedly some think that the right of habeas corpus is outmoded in a society where the threat of terrorism is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce constitutional rights extinct.
Who’s right?
Who knows?
Isn’t Supreme Court analysis fun?
Justice Scalia is a fan of “Sex and the City.”
Apparently Antonin Scalia is a Sex and the City fan. When Sarah Jessica Parker finished an interview with Charlie Rose on May 29, she left the Bloomberg Building, where the show is taped, and stopped for a cigarette in the courtyard. The conservative Supreme Court justice emerged from a nearby Town Car and rushed over to praise the star. “He was absolutely gushing, telling her how much he loved her show and how excited he was to see the movie,†says a witness. “Finally, he asked her if he could bum a cigarette.†She obliged, the witness said, and then Scalia strolled away. A Supreme Court spokeswoman confirmed the meeting but denied the cadge. “He was there for a symposium,†she said. “And he lent her a match.â€
The California Supreme Court today has denied a request to delay same-sex marriage until after the November elections. Same-sex marriage becomes legal in California on June 16 at 5:00 p.m. This is great news.
The anti-gay folks had wanted the court to hold off on legalizing same-sex marriage until California voters had a chance to vote on the constitutional amendment in November, saying that it could cause confusion if same-sex couples got married and then a constitutional amendment banned those marriages. The court denied the request, unanimously, with a simple order. [Update: Originally I had thought it was 4-3, but that was only on the request for rehearing. The decision to deny the stay was unanimous.]
The court didn’t provide its reasons, but here’s one: getting a constitutional amendment on the California ballot requires the signatures of just 8% of the voters. If the court granted a stay pending the outcome of a constitutional amendment initiative, what’s to say that any group that disagrees with a court decision can’t get 8% of the voters to sign a petition for an initiative overturning the decision, and then request a stay? Granted, the current situation is unusual, because the signatures have already been gathered. But if you can just delay implementation of any court decision by saying, “Hey wait – we’re about to try to overturn your decision via ballot, can you wait a few months?” that doesn’t seem fair.
Also, what if the court granted a stay and the amendment then failed? Then same-sex couples would have lost several months in which they could have been married, all because they were held hostage to 8% of the voters who signed a petition. That doesn’t seem fair either. I’m glad the court seemed to agree.
Over the next few months, gay couples will get married in California, and Californians will see that the world hasn’t fallen apart.
Chris Cillizza writes about the remarkable nature of Obama’s impending nomination victory:
The facts are thus: Clinton came into the nomination fight heavily favored to be the nominee. Not only did she have the backing of the most potential political machine in the country — due in large part to her husband’s eight years in the White House — but she had also built a vaunted fundraising operation of her own and surrounded herself with some of the best and brightest aides in Democratic politics.
Obama, on the other hand, had served for two years in the U.S. Senate after doing a stint in the Illinois state Senate. He has toured the country for Democratic candidates during the 2006 election cycle and had begun to build a national organization through his Hopefund political action committee. (In fact, Obama often referred to himself as a “skinny kid with a funny name.”)
There seems little dispute that Obama over Clinton deserves a place in the conversation of great political upsets.
Whether it makes you happy or sad, it’s pretty amazing. Clinton was supposed to be the nominee. People had talked about it for years. She was the wife of a popular two-term Democratic ex-president, and she had money and loyalty. The Clinton machine was intimidatingly unbeatable.
And then Obama happened.
Despite the talk of racism hurting Obama among whites, there’s a good argument for the notion that his race helped him as much as his hurt him.
[E]very four years, the candidate who is the new politics, new left darling, whether it’s Howard Dean or whether it’s Bill Bradley or whether it’s Gene McCarthy, has historically fallen on the shoals of the white working-class vote… And that candidate would always make a big splash early in the contest and there would be a lot of media attention… [but] ultimately what would happen is working-class whites and working-class nonwhites would align behind another candidate. …
[I]f you think of the Democratic Party as working-class whites, working-class blacks… and then the elite class, whatever that is, the cappuccino, latte class… and trichotomize the Democratic Party coalition as those three things, if you can get two of the three you’re probably going to be the nominee.
If you see Obama as a black Bill Bradley or Howard Dean, then the reason he did so well is that in addition to the “elite”-type voters, he also got the black voters — unlike Bradley or Dean, who only got the “elites,” while the more mainstream candidate got everyone else. The argument is basically that if Obama had been white, he would have gone the way of his “new politics” predecessors and faded away. Also, by this argument, a large chunk of the white population voted against him not because he’s black, but because he’s the “elitist” candidate. Just as they supposedly wouldn’t support Bradley or Dean, they wouldn’t support Obama, either.
That doesn’t mean there isn’t racism going on as well. Or at least some sort of quasi-xenophobia. As David Brooks writes today:
These independent voters were intrigued by Obama’s “change†message, but they knew almost nothing about him except that he used to go to the Rev. Jeremiah Wright’s church. It’s as if they can’t hang Obama’s life onto anything from their own immediate experiences and, as a result, he is an abstraction.
Basically, Obama is just too weird an idea for some people.
Now that he’ll be able to run a race without one hand tied behind his back, he needs to spend some time focusing on his personal narrative.
And Clinton needs to campaign full-steam for him so we can get a Democrat back in the White House. She needs to hammer away at McCain and convince her supporters that she does *not* want them to vote for him. Whether she can do this, I don’t know. But unless she wants McCain to get elected and appoint a couple more Supreme Court justices, she’d damn well better work her ass off for the ticket.
The L.A. Times interviewed the Chief Justice of the California Supreme Court, Ronald George, who wrote the majority opinion in the marriage cases.
In the days leading up to the California Supreme Court’s historic same-sex marriage ruling Thursday, the decision “weighed most heavily” on Chief Justice Ronald M. George — more so, he said, than any previous case in his nearly 17 years on the court. …
[A]s he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled in a wide-ranging interview Friday.
“I think,” he concluded, “there are times when doing the right thing means not playing it safe.”
Yet he described his thinking on the constitutional status of state marriage laws as more of an evolution than an epiphany, the result of his reading and long discussions with staff lawyers. …
He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.
California’s decision, in a case called Perez vs. Sharp, preceded the U.S. Supreme Court’s action on the issue by 19 years. Even after that ruling, Californians passed an initiative that would permit racial discrimination in housing. The state high court again responded by overturning the law, George said.
Rather than ignoring voters, “what you are doing is applying the Constitution, the ultimate expression of the people’s will,” George said. …
“When is it that a court should act?” George mused. “When is it that a court is shirking its responsibility by not acting, and when is a court overreaching? That’s a real conundrum. I have respect for people coming out on different sides of this issue.”
George’s reputation for caution is based on the court’s tendency, under him, to decide cases narrowly, refusing to reach issues not necessary to the case at hand. Advocates thrust the central constitutional question of equality for gay people on the court; there was no way to avoid it. …
Santa Clara University law professor Gerald Uelmen, who has closely followed George’s court tenure, said “the biggest surprise” of the marriage ruling was that George favored it. Uelmen said George must have done “some real soul searching.”
The “very carefully written opinion” reflects that George “is very sensitive to how this will be perceived,” Uelmen said. “He realized that this more than any other thing he does as chief justice will define his legacy. He’ll certainly take a good deal of political heat over this.”
Mathew Staver, founder of Liberty Counsel, said he had long expected George to vote against same-sex marriage.
“His change from where I thought he would be is baffling,” said Staver, whose group promotes traditional marriage.
UCLA law professor Brad Sears said, “Definitely what created the majority was George’s support.”
New York Law School professor Art Leonard, who edits the monthly Lesbian/Gay Law Notes, has written a fascinating look at the little-discussed parts of the California marriage decision. Some highlights:
When/if the court’s decision goes into effect, California will be the third largest polity in the world that has embraced marriage equality by allowing same-sex couples to marry. The largest is South Africa, with a population of almost 48 million, then Spain with about 45 million, then California, with about 38 million, followed by Canada, 33 million…
California freely allows out-of-state residents to marry there, regardless of what their home states will do in the way of marriage recognition, so we are likely to see plenty of action as out-of-staters flock to California to marry, then go home and try to assert their rights. Additionally, of course, with a population almost six times as large as Massachusetts and an enormous LGBT community, California will generate an enormous number of married same-sex spouses, some of whom will travel to and through other states, relocate for employment or other reasons, and find themselves embroiled in situations calling for marriage recognition.
[T]he California Supreme Court’s holding that sexual orientation is a suspect classification is really huge, far beyond the marriage issue, because it makes any state policy or practice that discriminates based on sexual orientation presumptively unconstitutional. At one fell swoop, it says that gay public employees in California have the same level of constitutional protection from workplace discrimination on the basis of their sexual orientation that racial minority employees have from race discrimination, for example. (To judge by the cases I see popping up on my regular westlaw searches, this could make a big difference, for example, in pro se litigation by state prisoners challenging homophobic treatment by guards and prison administrators, and could also be used to mount challenges against recalcitrant public school administrators. . .)
There’s more that con law nerds like me will enjoy.
There’s one aspect of the California marriage decision that’s almost as important as the outcome: the legal reasoning the court used in reaching its result. The opinion contains great news for gays and lesbians in California — and perhaps elsewhere — that goes beyond marriage.
The California Supreme Court didn’t just state yesterday that marriage is a fundamental right open to gay and lesbian couples. It also became the first high court in the nation to state that any law that discriminates against gay people will be treated with the same skepticism as laws that discriminate on the basis of race or gender. Any such laws will have to survive a heightened level of scrutiny in order not to be found unconstitutional. Not even the U.S. Supreme Court uses that heightened standard for sexual orientation discrimination.
In deciding cases involving equal protection violations, the U.S. Supreme Court uses different levels of scrutiny depending on the characteristic that is being discriminated against. Under the lowest level of scrutiny, “rational basis” scrutiny, a government entity merely has to show that the discrimination is rationally related to a legitimate government interest. The classic case comes from the 1950s, in which the Court upheld an Oklahoma law stating that optometrists were allowed to replace lenses but opticians were not. The Court found that the state legislature could have put forth a rational reason for the law.
The Court uses higher levels of scrutiny in evaluating laws that discriminate against certain groups. While the criteria seems flexible, these are generally groups that have a long history of suffering from discrimination. The most common are racial minorities and women. But the Supreme Court has never stated that gays and lesbians deserve the same heightened protection. Even when it’s struck down laws that discriminate against gays — such as the sodomy laws and the Colorado constitutional amendment that outlawed any laws that bar gay discrimination — the Court used rational basis scrutiny, finding that there was no rational reason for these laws.
In interpreting their own state constitutions, state supreme courts tend to follow the lead of the U.S. Supreme Court. State constitutions can’t provide fewer rights than the U.S. Constitution does. But since constitutional rights are a floor and not a ceiling, state constitutions are free to grant more rights than the U.S. Constitution does. To my knowledge, and to the knowledge of most commentators I’ve read since yesterday, until yesterday no state supreme court had treated sexual orientation as a suspect classification in a law. But now the California Supreme Court – allegedly the most influential state court in the nation — has done so.
Even if the proposed constitutional amendment restricting marriage to opposite-sex couples passes in November, that ruling will stand. (Except in the area of marriage, of course.) And perhaps other state supreme courts will eventually follow California’s lead.
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.