California! (after parsing the whole decision)

Yes, I know the California Supreme Court ruled in favor of gay marriage a couple days ago, but it took a while to read the whole ruling and summarize all 161 pages of it so that you don't have to (there are also 9 pages of lists of who argued before the court and who provided briefs). The ruling is a lot more readable (legal terms are defined) that I expected.

The California Supreme Court said there is no compelling interest to refuse marriage to gays and that Domestic Partner laws are not and cannot be the same as marriage. Thus the state constitution's Equal Protection Clause requires that California law be changed so that same-sex couples may marry. The vote was 4-3

There is also a marriage protection amendment that has gotten enough signatures and will be on the November ballot in CA. The amendment was apparently written with the assumption the Supremes would rule against gay marriage because it seems to not have provisions for canceling marriages that take place between June and the election.

Commentary, including a link to the text of the ruling.

More commentary.

Some thoughts from reading the decision:

The majority opinion:

The opinion starts off by noting one big difference: California already has Domestic Partnerships, which gives a gay couple nearly all the rights of marriage that a state can provide. The issue is not whether gays can have a legal relationship, as it is in other states, but whether a DP is satisfactory for gays while reserving marriage for straights. The discussion starts from a much higher plane. The question before the court is does the difference in name or label violate the California Constitution.

Calif. long ago established a fundamental right to marry. That was firmly established in a case involving a mixed race couple. The state also had already established that sexual orientation is not a legitimate basis to deny rights. But is the state denying rights by using different words for different kinds of unions?

The Calif. legislature could have avoided the mess by creating a legal term for all relationships, gay or straight, and leave the term "marriage" for religious uses. But they didn't.

Reasons why differing terms are not equal:

Gay couples lose dignity and respect: you don't have a real relationship, you're second-class citizens. That is like designating interracial marriages as "transracial unions." The word marriage already has a long history and there is widespread understanding and approval of what it represents. It has symbolic importance. But DPs require explanation and the separation maintains gays in their vulnerable position. In addition, when faced with the choice of "married or single" a gay person would be required to out themselves by declaring they are in a DP and that may be dangerous in a setting where such a distinction is irrelevant. This is a violation of the right to privacy.

Permitting gay couples the use of the word marriage does not deny rights to straight couples and does not change the requirements of marriage. They are not attempting to define new benefits and obligations of marriage, nor are they attempting to destroy the institution of marriage.

The Domestic Partner Act (DPA) can only address the material and tangible aspects of a relationship.

Even though the ruling is essentially about the name of the relationship, California law says a lot about the rights and responsibilities of marriage and this ruling looks at whether gays are able to properly respond to those rights and to fulfill the responsibilities.

The right to marry has come to be defined as the right of an individual to establish a legally recognized family with the person of one's choice. This has significance to society as well as the individual.

Society's interest is in the raising of children and caring for family members who cannot care for themselves due to age, sickness, disability, or need.

An individual's interest is emotional and economic support, and allows a person to invest in and rely on a loving relationship with another adult which may be crucial for a person's development. It also joins families, providing a wider network of economic and emotional security as well as joins the couple to the broader family social structures of community life. Marriage provides an opportunity to publicly and officially express love and long-term commitment and the ability to raise children with a loved one.

In addition to society, government bestows rights and protections to legally recognized unions, including protections from adverse claims from outsiders. Marriage is important enough that government can enforce the mutual obligations of marriage on the couple. On the flip side, the couple has a right to be free from undue governmental intrusion.

Thus the right to marry is so fundamental the Legislature cannot choose to withdraw it. In the same way the constitution must be seen to apply this right to all couples, regardless of sexual orientation.

Tradition is not enough to withhold this right.

Calif. law has already recognized that homosexuality is not an illness, but a variation on humanity, and that gay people are capable of entering into loving and committed relationships and of raising children. This recognition is not dependent on DPA, though it does constitute explicit official recognition. Thus, the state cannot deny an officially recognized and supported family.

Marriage cannot be restricted by the ability to procreate, even though marriage may have been given state recognition to promote stable relationships for the raising of children. The state has never denied marriage to those physically unable to conceive and it is an intrusion for the state to determine if conception is possible. While marriage may promote "responsible procreation" it cannot be construed to be limited to that goal. A gay couple cannot be denied marriage because they cannot accidentally produce children. Besides, a marriage is much more than raising children.

The claim that a child should be raised by biological mother and father is immaterial to the state (which allows adoptions), but the state does have an interest in stable, long-term, two-parent families.

Under one type of constitutional tests the burden of proof falls on the plaintiff, on the other type it falls on the state. The second, called "strict scrutiny" is applied if the situation involves "suspect classifications" and "fundamental interests." Denying marriage to gays revolves around whether homosexuality is a "suspect classification." While it is obvious there are differences due to sexual orientation that difference must be on an immutable trait (otherwise a person can simply change the trait) and there must be stigma associated with the trait. The court sidestepped whether gays can change their orientation by noting that religion is also classified as immutable and as fundamental to a person's identity. That there is a stigma is obvious by gay suffering "pernicious and sustained hostility." The Attorney General tried to claim that one more test of "political powerlessness" was also required, but that got booted quickly. Strict scrutiny is required.

Because of strict scrutiny the state must show that the different name for the relationship is more than simply rational, it must be compelling and necessary for state interests.

Attempts at defining a compelling reason:

The Calif. Constitutions written in the 1800s mention husband and wife in some places. But that does not preclude the Legislature from changing marriage law, which it has.

Separation of powers means changing the marriage law should be up to the Legislature. The court agrees, as long there is no underlying constraints imposed by the Constitution, at which point the court is obligated to express its opinion. A citizen led initiative (which bans gay marriage) does not exempt a law from judicial review. The fact of a constitution means the people have accepted limits on "the people's will." Certain things are placed beyond the reach of majorities and voters are no more able to violate the Constitution than government officials.

Tradition is not a compelling state interest. We've already defied tradition in interracial marriages.

Excluding gays from marriage is not a compelling reason because straights lose no rights and the legal nature of the institution is not changed.

No religious organization or official is required to change its policies about gay couples.

Calif. already allows gays to adopt, so gay marriage can't hurt children except by its absence -- the protections and dignity children enjoy because their parents are married would be denied.

A separate word for marriage would validate the acceptability of different treatment of gays, which usually means less favorable treatment.

In deciding a remedy the Court has the choice of adding a benefit to those who don't have it or taking a benefit away from those who do. It was easy to determine the Legislature would not have wanted to remove the name "marriage" from straight unions, so adding the same word to gay unions was the preferable outcome.

In a second concurring opinion one justice laments the 4000 gay marriages that were voided when the Supremes ruled that the San Francisco mayor did not have the authority to declare banning gay marriage was unconstitutional. This justice notes the ruling says nothing about the state of those 4000 marriages.

Dissenting opinions:

The first dissenting opinion was signed by two justices (of 7) who believe the court overreached its authority. The definition of marriage should have been changed through democratic means as social and legal understanding of marriage change. An aspect of this overreaching is the appearance of taking legislative action -- the DPA, which gave gays everything but the name "marriage" -- and turning it into a constitutional right. In addition, Calif. had already bestowed all substantive benefits it has the power to bestow.

The court addressed the issue of the name of the union. It did not address the underlying issue of whether gays are allowed to marry. Instead, it started with the DPA as the assumption that gays should be allowed to marry. Proposition 22, which became law 308.5, was a voter initiative to ban gay marriage. The DPA was an end-run by the Legislature. This dissent says the court has no authority to turn that end-run law into a constitutional right. The act of turning a progressive law into a right can make the Legislature less willing to pass progressive laws and stifles debate on important issues.

The Constitution assumes straight marriage and several laws have confirmed that assumption (including Prop 22) and justices did not justify "such a cataclysmic transformation of this venerable institution." Fundamental rights are those which are deeply rooted in history and tradition, implicit in the concept of liberty, and such that "neither liberty nor justice could exist if they were sacrificed." The name given to gay unions is not a fundamental right.

Up to this point I could agree with this dissent (though I'm glad it didn't prevail). Then this justice begins to show his true colors, not just someone interested in judicial restraint.

The majority decision takes pains to confirm that bans against incestuous and polygamous marriages remain. Yet their reasoning for requiring gay marriage is so flimsy that other court cases could use the same reasoning to lift those bans. Nothing like threatening the slippery slope. Another tired claim is that gays aren't barred from marriage -- as long as the couple is made up of a man and a woman there is no prohibition to either of them being gay. At least he acknowledges these probably aren't the partners gays would actually choose. Besides, the Prop 22 law wasn't out to discriminate against gays, it was only to confirm straight marriage, so you can't claim discrimination, especially since we gave you DPA. He also buys into the "powerless" requirement for testing discrimination, saying that gays can't be seen as discriminated against if their difficulties would soon be remedied by legislative means, especially considering the shift in public opinion over the last decade.

Changing the definition of marriage is something so profound that the people and the legislature should be able to control the pace of change. One of those controls for now is separate labels.

Keeping separate labels for same-sex and opposite-sex unions is not a burden as long as the federal programs administered by the state require separate treatment.

A second dissenting opinion (by one justice):

The DPA law was written so that DPs were to be the same as marriage in all but name. If the law doesn't quite do what is says it is supposed to do it should be fixed through the legislative process, or there is something wrong with the enforcement of the law. The law should not simply be overturned. It has done a lot in the few years it has been around. The balance between substantive rights and label should not be broken by the courts while society is still testing that balance and the legislative process is the best way to work out that balance. When ideas are imposed opposition hardens and progress threatened.

The majority discusses at length that the definition of marriage has always been one man/one woman, yet they claim that by including gays they are not changing the definition. You can't have it both ways.

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A couple months ago after oral arguments in this case a court watcher predicted how the court would rule. He got the outcome and number of votes right, but missed on a couple minor points, both found in the dissents. (1) Denying the word marriage for gays would not overturn the gains in rights already accomplished. (2) There really is a reason for not awarding gay marriage if the court so wished. That reason is judicial overreaching -- the DPA law works well for now. When the people are ready to deal with gay marriage, the legislative process will handle it.