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The California Supreme Court Rules in Favor of Marriage for Same-Sex Couples:

How Conservative Reasons Led to a Progressive Result Part Two in a Two-Part Series of Columns


Wednesday, May. 28, 2008

Recently, the California Supreme Court cleared the way for same-sex couples to marry, ruling that the state’s current ban violates both the equal protection and due process guarantees in the California constitution. Importantly, the court held that same-sex couples must have access to “marriage,” rather than to some alternative, but equivalent legal status such as the civil union or the domestic partnership.

In Part One of this series of columns, we considered why the California court held the name “marriage” to be part of the constitutionally-guaranteed right -- rather than focusing, as the highest courts in some other states have, upon ensuring same-sex couples access to the material benefits and obligations of marriage.

Now, in Part Two, we will examine the California court’s view about the continuing importance of marriage in society. We suggest that that the court’s majority opinion is, perhaps ironically, both conservative and progressive – conservative in the way it marshals traditional arguments about why marriage matters to individuals and to society, yet progressive in that it rejects the appeal to history and tradition as a reason that the definition of marriage must not change.

Why Marriage is Fundamental: The Court Recognizes Same-Sex Couples’ Claim to Marriage as a Claim for Dignity and Respect

In ruling that gay male and lesbian couples were entitled to marry, the Supreme Court of California emphatically stressed the continuing importance of marriage both for individuals and for society. In doing so, it drew on many traditional arguments about why marriage matters. In this sense, the California ruling might actually be read as a conservative decision: It recognizes and seeks to preserve the important functions of marriage, in an age when many couples simply cohabit, and many people opt to be single by choice.

At the same time, the Court’s opinion is clearly also a progressive one, for it concludes that appeals to history and tradition alone are insufficient constitutional bases for excluding same-sex couples from this fundamental institution. It may also be read as progressive, as well, because it considers and rejects a number of contemporary arguments made by the pro-marriage movement against redefining marriage.

Why is marriage fundamental? Prior state high court opinions that have ruled in favor of the constitutional claims made by same-sex couples have often included rich portrayals of the lives of the various couples before the court, stressing their “common humanity.” The California court, by contrast, spends comparatively little time on such profiles, simply noting that the couples before it are “a diverse group of individuals who range from 30 years of age to more than 80 years of age,” and that many have been together more than a decade, and one couple for more than 50 years. (Before the court, in addition to the named plaintiffs, were organizations representing thousands of same-sex couples in the state of California.)

Instead, the California court offers perhaps the richest account to date by a state high court of why marriage is a vital social institution, significant both to society and to those who marry. It also emphasizes the unique role of marriage in providing “official recognition” to a family relationship. In doing so, the court makes use of several traditional arguments typically used by opponents of same-sex marriage. Precisely because marriage is – as conservatives often have argued -- unique in offering couples societal respect and dignity, the court reasoned that the state cannot deny it to same-sex couples without undermining constitutional guarantees of rights of privacy, liberty, and equality.

From a long line of federal and state precedents about liberty, privacy, and the right to marry, the California court distills one basic idea: the idea that the fundamental right to marry embraces the right of an individual to establish, with a loved one of his or her choice, an officially recognized family relationship. Because civil marriage provides the institutional framework for families to secure such recognition, the state cannot relegate same-sex couples to an alternative, albeit equivalent status without denying them a “core element” of the right to marry.

Notably, broad construction of the right to marry is not new for California. Indeed, California led the nation in striking down its ban on interracial marriage in Perez v. Sharp in 1948, nearly twenty years before the U.S. Supreme Court would do so for the rest of the nation.

Why Marriage Is Important to Society and Individuals: The Court’s Answer

The California court elaborates upon many reasons that both society and individuals have a stake in the institution of civil marriage. Ultimately, it asks and answers the question: “What is society’s interest in marriage?”

First, the Court tells us, there is the channeling function of the family, as the “basic unit of our society.” Older California cases state that the family “channels biological drives that might otherwise become socially destructive,” giving order to sexuality and procreation. Second, civil marriage also facilitates parents’ providing for “the care and education of children in a stable environment.” Third, society relies on marital and family relationships, which are attended by legal obligations of support, to provide crucial care for dependents and to relieve the public from, or at least share with it, the burden of support. Society favors marriage by linking many rights and responsibilities to it.

For many reasons, the court explains, marriage is also of “fundamental significance” for those who seek to marry. It offers “the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.” Indeed, constitutional precedents speak of it as part of the “pursuit of happiness.” The court notes that, of course, people can have and raise children outside of marriage, but “the institution of civil marriage affords official governmental sanction and sanctuary to the family unit.” Civil marriage – as a public statement – affords persons a public affirmation of commitment and a form of self-expression. It also enmeshes married persons in a broader network of extended family, as well as in the broader family social structure that is a vital part of community life. Families provide a place in which personality may be developed, intimate association pursued, and values and commitments generated that reach beyond the family.

When Traditional and Progressive Arguments Merge

Those who argue against extending marriage to same-sex couples often appeal to some of these traditional functions of marriage. For instance, the channeling function of the family – and of family law – provided a rationale for preserving the traditional definition of marriage in Hernandez v. Robles, a recent case in which New York’s highest court upheld the state’s ban on same-sex marriage, and in a dissent to Goodridge v. Department of Public Health, a case in which Massachusetts’ highest court invalidated the state’s same-sex marriage ban.

Opponents of same-sex-marriage argued before the California Supreme Court that because of the historical link between marriage and procreation, the constitutional right to marry should be limited to opposite-sex couples. Altering the definition of marriage, they argued, would send a message that marriage no longer has to do with procreation, or with a child’s needing a mother and a father.

The California court’s cogent rejection of those arguments warrants attention. It stated that although channeling procreation may be a reason for marriage, the constitutional right to marry has never been confined only to couples capable of procreating. Moreover, promoting “responsible procreation” among heterosexuals is not a constitutionally-sufficient reason to deny same-sex couples the fundamental right to marry. The state’s goal of encouraging stable two-parent family relationships can be served by extending the benefits of marriage to same-sex couples, who often raise children together.

The California court also observes that, although providing a stable setting for procreation and childrearing is one important purpose of marriage, it is not the only one. The court rightly stresses marriage as an adult relationship. State and federal precedents link marriage to adult happiness and to personal enrichment. Moreover, the California court points out that the U.S. Supreme Court has upheld the constitutional right of married couples to use contraception.

The California court also considers and rejects another argument made by the marriage movement: the contention that allowing same-sex couples to marry will “send a message” that marriage has nothing to do with procreation and child rearing, and that it is “immaterial” to the state whether a child is raised by her or his biological parents. But, the court held, recognizing the constitutional rights of same-sex couples to marry diminishes neither the constitutional rights of opposite sex couples nor the legal responsibilities of biological parents. If anything, the court concluded, recognizing these rights “simply confirms that a stable two-parent family relationship, supported by the state’s official recognition and protection, is equally as important for the numerous children in California who are being raised by same-sex couples as for those being raised by opposite-sex couples.” As New York’s Chief Justice Kaye wrote in her dissent to Hernandez: “There are enough marriage licenses to go around for everyone.”

Why History and Tradition Alone Are Not Enough to Restrict Access to Marriage: The Court’s Explanation

The California opinion is also notable for its unwillingness to defer completely to history and tradition when defining constitutional rights. Though the State of California had urged the court to embrace the longstanding definition of marriage as a union between a man and a woman, the court looked more critically at history and tradition. Drawing on its own precedents, and subjecting these arguments to strict scrutiny, the court stated that history alone “is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee.” The fact that women’s supposed different or inferior nature had been used to exclude women from jury service or other aspects of civic life, for example, plainly was not an adequate contemporary reason for such exclusion.

In rejecting wholesale deference to tradition, the court insists that neither marriage nor constitutional concepts are static. In this sense, its reasoning resembles that of Goodridge, which spoke of marriage as an evolving institution. One need only contrast the “well-established legal rules and practices” that discriminated against and excluded racial minorities, women, and gays and lesbians with our contemporary interpretation of our constitutional commitments to abhor such discrimination and exclusion, in order to see that evolution. The court invokes Justice Harlan: “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

Constitutional Interpretation or “Policy Making” from the Bench?

The California ruling is already garnering heated criticism, and will likely catalyze the effort to amend the California constitution to ban same-sex marriage once again. Opponents have decried the opinion as the work of “activist judges,” who have condemned the traditional definition of marriage as bigotry, and as undermining the will of “the people.” This charge seems a bit odd, though, given that six of the seven justices on the California court were Republicans – belonging to the very party that most often decries liberal judicial activism, and scours its nominees for signs of it.

In sum, the California court has, and doubtless will continue to be, criticized for usurping a policy-making role best reserved to the people and their elected lawmakers. However, there is a strong rejoinder to this claim: When lawmakers and “the People” make rules about marriage, they are still subject to constitutions, both federal and state.

The opinion is rightly being praised by proponents of marriage equality. But is it too conservative in its invocation of the primacy of marriage? It is possible that some legal scholars and activists who have called for the development of domestic partnership laws, and other legal statuses alternative to civil marriage, may be disappointed with the majority’s insistence on the inadequacy of domestic partnership as a legal alternative to marriage. The court’s marshaling of traditional arguments about the importance of marriage -- along with its emphasis on the risk that domestic partnership will be perceived as lesser and as inferior -- may lead some progressives to lament that a real opportunity for breaking the monopoly that marriage holds on our social and legal imagination was lost.

While we can argue about the society we ideally should have, however, for now the California Supreme Court’s point should win the day: So long as marriage exists and is only open to opposite-sex couples, the law on the books conveys a very real and serious insult to same-sex couples, communicating that their family relationships are not worthy of equal dignity and respect. Although private speakers may have the right to preach this message, it is a message that is intolerable, and deeply discriminatory, for the government to send to its own citizens.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Linda McClain, who has been a prior guest columnist for FindLaw, is a professor of law and Paul M. Siskind Research Scholar at Boston University. She discusses same-sex marriage and other family law issues in The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006).

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