The California Court of Appeal's Same-Sex Marriage Decision: Not the Last Word on the Matter, But Still Revealing In Many Ways

By VIKRAM DAVID AMAR

Friday, Oct. 13, 2006

Last week, in In Re Marriage Cases, the California Court of Appeal, by a vote of 2-1, held that California's statutory definition of marriage, which excludes same-sex unions, does not violate the California constitution. (A California trial court had previously ruled that it did.)

The California Supreme Court will almost surely take up these consolidated cases and have the state's final - and thus most meaningful - judicial word on the subject. Still, the Court of Appeal's decision helpfully frames many issues, and illustrates a number of important features of the constitutional debate over gay marriage.

A Legal Issue As To Which Reasonable Minds Can Differ

First, as the Court of Appeal's split decision tends to indicate, the constitutional questions presented in cases like these are not clear-cut; reasonable jurists may differ as to their outcome.

The moral question of same-sex marriage is, of course, a separate one. An individual might feel legally bound, if serving as a judge, to uphold bans on same-sex marriage, yet also morally bound, if serving as a legislator, to vote to open marriage to same-sex couples.

On this moral question, many proponents of gay marriage think they are clearly right - and I am inclined to agree. But the legal questions are a different matter: As the majority opinion and the dissent in the Marriage Cases show, there are two plausible legal sides to this debate.

Indeed, these opinions demonstrate that, owing to established legal doctrine, much of the resolution of constitutional cases like these involves selecting from among a set of binary choices -- stark dual options - and once the choices are made, the result follows almost inexorably.

Strict Scrutiny Review Versus Rational Basis Review

Perhaps the most important choice governs the standard of review - that is, the choice as to how deferential a court is going to be to a legislature's defense of its discriminatory withholding of the "marriage" label to same-sex unions. Put another way, as Justice Anthony Kline noted in his dissent, the standard of review choice is the choice of "how much may be demanded of the state to justify its restriction of" marriage to opposite-sex couples.

Justice Kline would subject California's statutes to so-called "strict scrutiny," which requires the state to advance a "compelling interest" to justify its laws. Very few laws ever survive such stringent review.

The reason Justice Kline finds strict scrutiny appropriate is that he believes the doctrinal prerequisites for its application are satisfied: In his view, individual members of same-sex couples have a fundamental due process and privacy right to marry. Also, in his opinion, discrimination against same sex couples is constitutionally suspect under equal protection principles. When "fundamental" rights and "suspect classes" are implicated, strict scrutiny is, under longstanding precedent, the appropriate standard of review.

By contrast, the majority found no fundamental right to marry someone of the same sex, nor did it find any presumptively suspect class discrimination. Accordingly, it determined that California's exclusionary definition of marriage was subject to review only under the "rational basis" test. Under this extremely deferential standard, laws are to be upheld so long as they minimally advance any conceivable legitimate (but not necessary important) state interest.

Unsurprisingly, once the majority decided to apply only "rational basis" or "minimum rationality" review, it had little trouble concluding that California's interest in preserving a durable, time-tested historical definition of marriage was more than adequate.

Due Process Versus Equal Protection

Another binary choice in such cases is the choice between due process and equal protection principles. The same-sex challengers in this litigation asserted that California's statutes ran afoul of both these state constitutional principles (and others as well.) Moreover, they argued that in this area analysis under both due process and equal protection ideas ought to proceed along parallel lines.

Justice Kline, in his dissent, embraced (and elaborated upon) these arguments when he asserted that "[f]ar from having separate missions and entailing different inquiries, substantive due process and equal protection are profoundly interlocked."

In sharp contrast, the majority emphatically differentiated between the two ideas. Due process, the majority wrote, is about protecting "only [those] rights that are 'objectively, deeply rooted in this Nation's history and tradition.'" And it reasoned that the right to same-sex marriage - a "novelty" -- was not among these rights: "While same-sex relationships have undeniably gained greater societal and legal acceptance, the simple fact is that same-sex marriage has never existed before."

This analysis tracks the thought of the legal mainstream on due process - as exemplified by the esteemed (and liberal leaning) constitutional scholar Cass Sunstein's commentary, over a decade ago, on the federal constitution's due process guarantee:

From its inception, the Due Process Clause has been interpreted largely (though not exclusively) to protect traditional practices against short-run departures. The clause has therefore been associated with a particular conception of judicial review, one that sees the courts as safeguards against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history.

Even the very controversial application of the Due Process Clause to the abortion context, via the doctrine of "substantive due process," purported to have some tradition-protecting dimension to it. Indeed, Roe opponent Justice Scalia (who thinks Roe's analysis doesn't support its result) once described Roe v. Wade as having spent "a fifth of [its] opinion negating the proposition that there was a longstanding tradition of laws proscribing abortion."

Justice Kennedy's recent substantive due process opinion in the gay sodomy case, Lawrence v. Texas, may have focused on recent tradition - of the last half century - more than ancient tradition, but he still couched his analysis in terms of the historical unusualness of Texas' enforced criminal ban on same-sex activity.

In sum, tradition remains a big part of the due process analysis.

Equal protection, on the other hand, is not about tradition. To the contrary, as Professor Sunstein explained, the Equal Protection Clause is seen as attempting "to protect certain disadvantaged groups from discriminatory practices, however deeply engrained and longstanding." Thus, whereas due process analysis looks backward to see what tradition says, "Equal Protection . . . looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure."

How did the differences between the two provisions affect California's Marriage Cases? By separating due process from equal protection, the majority there was able to limit the relevance of a number of powerful rulings the plaintiffs cited - striking down interracial marriage bans.

The same-sex couples argued that the interracial couples there had no more tradition on the side than do gays and lesbians today, and yet the courts still recognized their right to marry.

But the majority dismissed these rulings as really and primarily equal protection cases, even though they had some loose due process language: "To be sure," the majority wrote, "the cases . . .held antimiscegenation laws deprived participants of their fundamental right to marriage, but this holding cannot be divorced from the laws' racially discriminatory context."

A Question Within Equal Protection: Race Discrimination, Gender Discrimination, and Sexual Orientation Discrimination

All of which brings me to what I think is the core constitutional question here: Does discrimination against same-sex couples in the marriage setting significantly implicate equal protection principles?

Again, the majority thought not. That's because it felt that racial and gender equality - the context in which the cases plaintiffs cited arose -- lie at the core of the State's equal protection principle.

The majority went on to conclude that the antimiscegenation laws were not like the anti-same-sex-marriage laws: Even though the antimiscegenation laws formally barred whites from marrying blacks just as much as vice versa -- and thus in some sense applied to all races equally -- they were also clearly part of a system of racial hierarchy and subordination of people of color. And it was that system, the majority felt, at which the California constitution's equal protection guarantees took aim. Similarly, a system of subordinating women, in particular, would run afoul of the same guarantees.

But what about a system of subordinating gay persons?

One might argue that such a system is also a system of gender discrimination - after all, California's marriage laws make the gender of one's intended partner relevant. But the majority said that this fact does not mean that California's scheme is gender-based for the purposes of equal protection analysis. Both male-male and female-female couples, after all, may seek same-sex marriage. Accordingly, the goal of the marriage laws is not to subordinate women to men or vice versa. If anything, it is to subordinate gay persons, regardless of gender.

That means, the majority concluded, that the equal protection argument here must arise, if at all, from the claim that discrimination against gays and lesbians is at least substantially analogous to discrimination against race- or gender-based groups.

Is it? Here, the majority said the caselaw and factual development was simply insufficient to embrace the plaintiffs' claims. For example, the majority noted that there had been no factual findings on the extent to which sexual orientation is an "immutable" characteristic, something that courts have held to be very important in deciding whether a group should be the beneficiary of heightened judicial review. ("Immutable" characteristics like race and sex have typically been held to trigger protection; "mutable" characteristics - seen as a matter of choice - have not.)

If there are soft spots in the majority's analysis, this might be one of them. I would expect the California Supreme Court to be more thorough and more sustained in its discussion of this - the key - question: What does equal protection really mean in the context of sexual orientation?

We have about a year or so to wait to see how the high court resolves that crucial choice.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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