California and Same Sex Marriage

Ellen DeGeneres and her partner Portia de Rossi have announced that they are going to be married. They have this opportunity thanks to the California Supreme Court’s In Re Marriage Cases decision which found that California’s ban on same-sex marriage violated the California Constitution’s Equal Protection Clause.

Let me first congratulate Ellen and Portia on their upcoming wedding and wish them a long and happy marriage. That said, I strongly disagree with the California Supreme Court, even though as a political matter I am in favor of legalizing same-sex marriage.

One of the greatest responsibilities of our courts is to protect individual liberties from the tyranny of the majority. But those rights must first be protected by the constitution (or other higher law). The 4-judge majority in this case found a basic civil right to same-sex marriage simply because they wanted to find it, not because that right was present in the text or envisioned by those that wrote and/or ratified it.

In this case, the court ruled that California’s Equal Protection Clause requires “Strict Scrutiny” when dealing with discrimination based on sexual orientation. To the best of my knowledge, this is the first classification other than race or national origin to warrant strict scrutiny (though it is also used when a fundamental constitutional right is infringed). Gender discrimination only warrants “intermediate scrutiny.” Most everything else is subject to a rational basis test.

Other courts have construed equal protection clauses to require a rational basis for prohibiting same-sex marriages. That means that in order for the law to be found constitutional, the government has to offer up a legal (as in not illegal) reason for the discrimination that a reasonable person might feel justified the law. Personally, I don’t find any of the reasons offered as justifications for the law to be persuasive. I really don’t see how allowing same-sex unions is going to undermine the marriages of heterosexuals. But that is not the standard. The question is whether no reasonable person could believe it.

In footnote 52 of the majority opinion is this quote. “[O]ur nation’s culture has considered [those types of relationships] inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.” In this quote, the court is explaining why the new right does not extend to polygamy or adult incest. But that quote would be equally true if it was talking about same-sex marriage. Leave incest out of it because I think there are other reasons besides tradition to bar incest, adult or otherwise. But here’s the thing. I can’t think of a single justification for banning polygamy that couldn’t also be applied to justify a ban on same-sex marriage. If these 4 judges were intellectually honest they would admit as much.

I don’t mean to pick on polygamy. So long as everyone involved is an adult I have no problem with it. Big Love is one of my favorite shows. I am simply trying to point out how this decision is rooted in the values of those judges and not in the constitution itself.

Again I approve of the result, if not the method. I think that the gay rights movement should focus on getting the same rights as married couples through civil union laws (which they already had in California) and worry about calling it marriage down the road when it won’t freak out quite so many people. Doing it through the courts instead of the ballot or the legislature has led to a backlash with many states passing constitutional amendments banning same-sex marriage.

But that backlash has a silver lining (at least for Republicans). This will help John McCain, especially if there is a constitutional amendment to overturn this decision on the November ballot. If this measure brings out social conservatives who might not otherwise be inclined to vote it is possible (but still not likely) that California could be in play in November. Obama could not win if he lost California. Obama by the way is officially opposed to same-sex marriage, favoring instead civil unions. But I bet he comes out against a constitutional amendment enshrining his position.

Damn, who ever would have thought I would be to the left of Barack Obama?