The California Supreme Court's Gay Marriage Opinion: The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend?

In a highly-publicized ruling last week, the California Supreme Court required the State to offer marriage to gay and lesbian couples on the same terms as those enjoyed by opposite-sex couples. That decision will undoubtedly prompt volumes of analysis and commentary. In this column, I will offer a few preliminary perspectives and thoughts on the aftermath the ruling might generate.

The People of California Can Negate the Court's Decision, But Should That Power Be Considered Routine or Somewhat Disturbing?

First, as has been noted by my fellow FindLaw columnist Michael Dorf and others, the California high court ruling might be trumped by the voters of California as early as this November. Opponents of gay marriage have gathered and submitted signatures to qualify an initiative measure (the "California Marriage Protection Act" or "CMPA") for the State ballot this fall that would, if enacted, amend the California constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized" in the State. Because last week's decision by the California Justices was rendered on the basis of the California constitution alone (and not the federal Constitution), everyone seems to agree that the people of California can, by a simple majority vote in November, act to foreclose same-sex marriage in the Golden State.

From one perspective, this possibility of overturning a judicial result by direct democracy seems obvious and unremarkable: Since the people of California have ultimate power to decide what they want their own state constitution to say and do, they can – if they choose -- remove any state constitutional protection for same-sex couples that may currently exist.

But viewed from a different angle, the people's power to undo last week's ruling via statewide simple-majority popular vote seems more troubling. After all, one of the rationales relied on by the California Supreme court in invalidating California's statutory ban on same-sex marriage was the notion that government discrimination on the basis of sexual orientation should be viewed skeptically, because gays and lesbians are groups that have been historically victimized by invidious and prejudicial treatment that bears no relationship to their ability to perform in or contribute to society. This history of irrational prejudice, the court said, was "the most important factor in deciding whether" laws that treat gays and lesbians differently from straight persons should be constitutionally suspect.

But if the very reason why discrimination against gays and lesbians is constitutionally wrong is that the political majority has tended in the past to treat them unfairly, isn't it odd that the same political majority can, with a simple initiative vote in November, impose its will on them yet again?

The short answer to this question is this: Maybe it is odd, but constitutional law is odd in that way. By definition, whatever the California people want the California constitution to be, it will be. In this regard, I might disagree a bit with Professor Dorf's assertion that "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view. As my brother and (sometimes)FindLaw colleague, Akhil Amar, has put the point: "In the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."

The CMPA campaign should be a reminder, too, that what is legally and constitutionally permissible should not be confused with what is morally right. While constitutions may be the "supreme" law that people put down on paper and enact and enforce, they may not be – and often are not – the supreme embodiment of that which is just. Ultimately, even constitutions operate in a larger context of right and wrong.

The California Supreme Court Based Its Ruling Only on the California Constitution, Yet the U.S. Constitution Will Come Back Into Play if CMPA Passes in November

State constitutions operate not just in the larger context of morality and justice, but also in the larger context of the U.S. Constitution. And that fact raises some interesting questions about the interplay between California and federal law. In particular, what effect does the federal Constitution have on last week's ruling, or November's initiative outcome?

As to last week's ruling, the federal Constitution is beside the point. As noted earlier, the California justices ruled under state law only, and there is certainly nothing in the federal Constitution that prevents state law from recognizing same-sex marriage. Although the U.S. Supreme Court has not indicated it is yet ready to recognize a federal constitutional right to gay marriage (a point to which I shall return later in the column), states are free to do what they want in this area by way of affirmatively equalizing marriage rights.

Possible enactment of the CMPA in November raises more complicated federal questions, however. Suppose the initiative passes. Going forward, California would no longer issue marriage licenses to same-sex couples. But what about those same-sex marriages that are sanctioned by California this summer and fall, before the initiative is approved? Will those same-sex marriages continue to be respected?

That depends on a few things. First, it isn't clear (to me at least) that the CMPA by its own terms will, if enacted, affect already-existing California same-sex marriages. Initiatives in California are presumed to apply only prospectively unless they themselves provide for retroactive application. There is no explicit wording in the CMPA concerning its applicability to already-existing marriages.

Yet some gay marriage opponents may assert that the CMPA's ban on recognizing or treating as valid same-sex marriages (remember, the CMPA says "only [opposite sex] marriage. . . is valid or recognized") will prevent the State from continuing to recognize or treat as valid any same-sex marriages for any state law purpose going forward.

It's not clear today what "continuing" in-state validity or recognition would really mean (since California's domestic partnership laws conferred tangible benefits on registered same-sex couples even before last week's ruling on whether the label "marriage" should be extended.) But to the extent that it matters whether couples who marry this summer continue to be able to use the term "marriage," federal constitutional law may prohibit the retroactive application of the CMPA.

Under the due process clause of the U.S. Constitution's Fourteenth Amendment, states are limited in their ability to upset settled expectations about important property and liberty interests. And for the California constitution to tell same-sex couples that they are free to marry (as it currently does), and then tell them (after the constitution is altered in November) that their decision to marry is no longer honored by the State may unfairly disturb their reliance interest, and upset their reasonable expectations.

At the very least, the possibility of a violation of the Fourteenth Amendment should leave California courts (which will interpret the CMPA) inclined to read it narrowly and to deny it any retroactive effect. Such a narrow reading will avoid the need to resolve the federal constitutional problems with retroactive application, and courts often say that avoiding questions like those by reading state law narrowly is a good thing – since courts should not decide important constitutional questions unless reaching such questions is absolutely necessary.

What Are the Chances that a Federal Constitutional Right to Same-Sex Marriage Will Be Found?

Finally, what, if anything, does last week's ruling tell us about a federal constitutional right to same-sex marriage? Many commentators will say, "Nothing at all," because the meaning of the federal Constitution is distinct from the meaning of state constitutions. It is true that federal law and state law have separate lives. But it is also true that they often influence each other.

It is very common for state courts to interpret their state constitutions to mean exactly what the federal Constitution means. Granted, it is less common for federal courts to look to state law to determine what the federal Constitution means (as the Supreme Court made clear in its ruling earlier this term in Virginia v. Moore, by rejecting the incorporation of state law into the meaning of "unreasonable" searches and seizures under the Fourth Amendment). However, and importantly, there are a few areas where the meaning of state law does help determine the meaning of the federal Constitution.

One such area is so-called "cruel and unusual" punishment under the Eighth Amendment. There, what counts as "cruel and unusual" under the federal Constitution depends on what states are doing and not doing.

Another area, at least for many Supreme Court Justices, is substantive due process. What counts as a federally-protected "fundamental right" depends on what states have done, and what they are continuing to do. While Massachusetts and California are still the outliers in the national gay-marriage picture, those two States do comprise almost one seventh of the American people. And it won't take many more (populous) states following their lead to create a trend that might count in the eyes of Justice Anthony Kennedy and the other key Justices whose views on the meaning of fundamental federal rights dictate outcomes in the Supreme Court.