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15 May 2008 @ 11:20 am
I really hope I'm reading this right....  
I'm on page 51 of a 172 page-long opinion (S147999) issued by the California Supreme Court. [Direct PDF Link, 468 KB]

...and I think, if I've been reading this thing correctly... the court sided with the plaintiffs in saying that denying same-sex couples the right to marry is unconstitutional! (So we're #2 behind Massachusetts?!!!)


1. This ruling is not about policy and 'should' but "to determine whether the difference in the official names of the relationships [marriage vs. domestic partnership] violates the California Constitution."

2. "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." Their basis here is that the two (different, but supposedly equal) terms do not afford equal "dignity and respect."

3. Furthermore.... *in summary* San Francisco, et al. was wanting the court to use a 'strict scruitny' test of the law for reasons XYZ, and the State/Fundies were saying use 'rational basis.' The court said they didn't agree with reason XYZ, but that they were going to use 'strict scrutiny' anyway, because of reason ABC. The reason SanFran and lovers of love were wanting the 'strict' version is because the state has to establish a 'constitutionally legitimate' and 'compelling state interest' in order to carry on with its weasely ways. And because the State must establish that differential treatment is 'necessary' in order to serve that state interest.

4a. "Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest." (Italics theirs. Bold mine.)

4b. "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."

4c. "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."

4d. "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."

4e. "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."

5. "The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs’ argument that we recognize they 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."


In issuing their opinion, the justices frequently referenced landmark cases in interracial marriage rights. I'm extremely glad to see they took this approach (or, really, just ruled without having their head stuck up their ass).

IANAL, so I don't know how this will actually play out in real life, but this document really makes me squee right now.

The issue of 'gay marriage' is going to be on our November ballot, so while the justices ruled it's unconstitutional now, if CAians change the language of the constitution, that may not be true in November. *woe* The unofficial version of this on the previous ballot passed with a 60% in favor of 'preserving' marriage. (This time, we can haz TV adz nao? Liek, "We'r in ur bedz, makin' teh geyz, but u no worry! It all OK!")

To be updated as I read more of the brief...
 
 
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