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Grading the California same-sex marriage opinion

By Jack M. Balkin

The recent California same-sex marriage case, In re Marriage Cases, 2008 WL 2051892, has drawn a lot of coverage primarily on account of its consequences: same-sex marriage is coming to California, and unless the voters overturn the result by referendum, which is doubtful, it is there to stay. This is, in itself, good (although the decision, coming half a year before a presidential election, will help John McCain mobilize his alienated base, a consequence which a lot of same-sex marriage supporters should regard as bad). But a few people are also interested in the quality of its reasoning. If you are one of those people, the following analysis is for you. The rest can stop reading.

The California Supreme Court?s opinion is distressingly conclusory. It combines a tortured and probably unsalvageable substantive due process analysis with a strange, ultimately barely successful equal protection argument. If it is persuasive, it is barely so. Law professors are grumpy people who care less about whether you?ve argued the right side than about whether you?ve constructed your argument competently. I would give this opinion a barely passing grade.

The court?s arguments are based on clauses of the California constitution that resemble the federal equal protection and due process clauses. But since the decision wasn?t interpreting the U.S. Constitution, it can?t be reviewed by the U.S. Supreme Court.

The substantive due process argument

The doctrine of ?substantive due process? holds that some interests of citizens are so fundamental that the state may not violate them without a compelling interest ? which means, it is hardly ever permissible for the state to violate them. These interests are not enumerated in the Constitution. The judges must simply declare what they are. This can leave decisions based on them quite vulnerable, as notoriously is the case in the most prominent modern substantive due process decision, Roe v. Wade. The Court declares that there is a right to abortion without ever explaining the constitutional basis for such a right. (For my attempt to provide a better, more textually grounded basis, see here.)

The first holding of the California court is that there is a substantive right to marry, and that that right protects same-sex couples. Here is the crucial paragraph:

?Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation - like a person's race or gender - does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.?

The objection to this reasoning, of course, is that according to opponents of same-sex marriage, marriage is inherently heterosexual, so that same-sex marriage is a contradiction in terms. Rejecting that position requires substantive philosophical argument. It won?t do to just define marriage as ?the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own.? That?s just a bald conclusion masquerading as an argument.

The conclusion is backed by paragraphs iterating that marriage is really, really important to the people who want to get married:

?The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual's happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential.?

I agree. I have written in favor of same-sex marriage many times. But the argument of the paragraph just quoted isn?t a constitutional argument. The fact that you really, really want to get married can?t be the basis for a constitutional right. Otherwise the incest and polygamy laws would be in trouble, too.

The opinion moves on to equal protection considerations. The rule of equal protection, crudely put, is that some forms of discrimination are unconstitutional when engaged in by the state.

Sex discrimination

The plaintiffs in the marriage case argued that the denial of marriage licenses to same-sex couples is sex discrimination. This argument, which I?ve made again and again, can be stated in two syllogisms.

First syllogism:
(1) Laws that make people?s legal rights depend on their sex are sex-based classifications.
(2) Laws that discriminate against gay people are laws that make people?s legal rights depend on their sex.
Illustrations: If Lucy may marry Fred, but Ricky may not marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is suffering legal disadvantage because of his sex. If a business fires Ricky, or if the state prosecutes him, because of his sexual activities with Fred, while these actions would not be taken against Lucy if she did exactly the same things with Fred, then Ricky is suffering legal disadvantage because of his sex.
Therefore
(3) Laws that discriminate against gay people are sex-based classifications.

Second syllogism:
(1) Sex-based classifications are subject to heightened scrutiny.
(2) (from the first syllogism) Laws that discriminate against gay people are sex-based classifications.
Therefore
(3) Laws that discriminate against gay people are subject to heightened scrutiny.

This argument has been rejected in court many times, though none of the opinions have managed to counter the logic thus stated. I?ve always thought that courts had done this because, from a political standpoint, the argument proves too much. If accepted, the sex discrimination argument would entail that all laws discriminating against gays, notably marriage laws, must be swept away at a single stroke. Judges, I thought, are understandably hesitant to begin down that road.

Yet the California court rejects the argument, while at the same time upholding a right to same-sex marriage! What is the reasoning?

?In drawing a distinction between opposite-sex couples and same-sex couples, the challenged marriage statutes do not treat men and women differently. Persons of either gender are treated equally and are permitted to marry only a person of the opposite gender. In light of the equality of treatment between genders, the distinction prescribed by the relevant statutes plainly does not constitute discrimination on the basis of sex as that concept is commonly understood.?

The trouble with this reasoning is that it is the same logic that was used to defend bans on interracial marriage: both races are equally forbidden to engage in the prohibited sexual conduct, so there is no race discrimination. That argument was rejected by the U.S. Supreme Court in 1964 in McLaughlin v. Florida, in which the Court unanimously invalidated a criminal statute prohibiting an unmarried interracial couple from habitually living in and occupying the same room at night. ?It is readily apparent,? wrote Justice White for the Court, that the statute ?treats the interracial couple made up of a white person and a Negro differently than it does any other couple.? McLaughlin stated the obvious. If prohibited conduct is defined by reference to the actor?s own race or sex, the prohibition is not neutral with reference to that characteristic. Where same-sex marriage is prohibited, the clerk must, in doubtful cases, require the applicants to drop their pants or lift their skirts in order to know whether it is permissible to issue the marriage license.

The California court distinguishes the miscegenation decisions, including its own groundbreaking Perez v. Sharp (1948), because ?the antimiscegenation statutes at issue in those cases plainly treated members of minority races differently from White persons, prohibiting only intermarriage that involved White persons in order to prevent (in the undisguised words of the defenders of the statute in Perez) ?the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians.?? If this was the sole basis of those decisions, however, the miscegenation laws could have been saved by making them apply equally to all interracial marriages. The U.S. Supreme Court?s opinion finally invalidating all miscegenation laws in Loving v. Virginia (1967) made it clear that this was not an option.

The California court goes on to say that ?a statute that treats a couple differently based upon whether the couple consists of persons of the same race or of different races generally reflects a policy disapproving of the integration or close relationship of individuals of different races in the setting in question, and as such properly is viewed as embodying an instance of racial discrimination with respect to the interracial couple and both of its members. By contrast, past judicial decisions, in California and elsewhere, virtually uniformly hold that a statute or policy that treats men and women equally but that accords differential treatment either to a couple based upon whether it consists of persons of the same sex rather than opposite sexes, or to an individual based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, is more accurately characterized as involving differential treatment on the basis of sexual orientation rather than an instance of sex discrimination, and properly should be analyzed on the former ground. These cases recognize that, in realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual's sexual orientation.?

But this makes no formal sense. The registrar has to determine what sex the applicants are. There is no particular reason for the registrar to inquire into the applicants? sexual orientation. The California marriage law is then quite different from a rule that does formally discriminate against gay people, such as the U.S. military?s automatic expulsion of any member who is known to be gay.

Sexual orientation discrimination

The court then goes on to hold that discrimination on the basis of sexual orientation is presumptively unconstitutional. The court explains that ?the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society.?

Here the court is on firm ground for the first time. No one can reasonably dispute that gay people have been the object of unjust, insane hatred for a long time. Even the Vatican, no friend of gay rights, concedes that much. If it is stipulated that sexual orientation discrimination is what?s going on here, then the statute is in trouble.

Once we have gotten that far, then the burden is on the state to justify denying same-sex couples the right to marry. If the state has that burden, it is in trouble. The court is obviously right that a parallel institution of domestic partnership ?inevitably will . . . be viewed as of lesser stature than marriage and, in effect, as a mark of second-class citizenship.? Opponents of same-sex marriage are confident that they are right, and perhaps they are entitled to their confidence, but they haven?t done a very good job of articulating their position. An argument simply defining marriage a certain way does the state no more good than it did the court (in the substantive due process argument, discussed above). So here, at last, the opinion winds up on solid ground.

It was, however, an unnecessarily bumpy ride.

So the case is rightly decided, even if much of its reasoning is unpersuasive. Let?s now hope that it survives the fall referendum and that the Republicans are so damaged that even this gift is not enough to salvage their hopes.

Full post as published by Balkinization on May 17, 2008 (boomark / email).