Legal Commentary

The Most Important Aspect of Today's Same-Sex Marriage Decision?

By Jack M. Balkin

Today's California Supreme Court decision is certainly momentous, and worthy of celebration, for obvious reasons. It will, I think, come to be seen as part of the grand tradition of that Court, as exemplified in its bold 1948 decision in Perez v. Sharp, which prompted numerous states to abandon their anti-miscegenation laws, eventually leading to Loving v. Virginia. But wholly apart from the particular holding on same-sex marriage -- which is plenty important in and of itself -- it strikes me that the most significant legal development in the Court's decision is that it is (to my knowledge) the first time any state or federal court of last resort has held that discrimination on the basis of sexual orientation is suspect and thus subject to strict scrutiny under a constitutional equal protection clause. See pages 95-101 of the majority opinion.

There is a strong argument, I think, that the particular form of discrimination at issue here would be invalid even if viewed under a more forgiving "rational basis" lens, because there is no non-invidious, legitimate reason for restricting "marriage" to single-sex couples -- which was in effect the holding of the Massachusetts Court in Goodridge.. (See pages 20-22 of this brief.)

But long after the question of same-sex marriage is considered by other courts, legislatures, and popular referenda -- indeed, long after same-sex marriage becomes the norm rather than the exception in the various states -- the Court's holding today that all discrimination against gays and lesbians is constitutionally suspect is apt to have profound ripple effects across a wide range of different legal contexts. Here's the key, landmark holding:

There is no persuasive basis for applying to statutes that classify persons on
the basis of the suspect classification of sexual orientation a standard less rigorous
than that applied to statutes that classify on the basis of the suspect classifications
of gender, race, or religion. Because sexual orientation, like gender, race, or
religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual?s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.

Full post as published by Balkinization on May 15, 2008 (boomark / email).