What a Day for Love

"What a day, San Francisco. What a day, California. What a day for America. What a day for equality!" Mayor Gavin Newsom celebrated the San Francisco's win in the In re Marriages case.

Mayor Newsom acknowledged his Catholic faith and said that "God's delays are not God's denials."

It was refreshing to be reminded that some Christians are able to see beyond the Religious Right doctrinal rhetoric and support gay rights without qualms. One wouldn't know that they exist from most media channels. Watch Mayor Newsom's speech here.

California's Supreme Court today decided that any statutes prohibiting same-sex marriage were unconstitutional under the state constitution's equal protection clause.

The court reiterated that the right to marry is a fundamental right. The court held that sexual orientation is a protected class. The state has to meet the same strict scrutiny standard as it did in California's landmark 1948 miscegenation case. It must show that the state had a constitutional and compelling reason to impinge on the right in furtherance of a rational and constitutionally legitimate state interest.

There are three levels of scrutiny in federal law, but only two in California law. Federal law uses rational basis, intermediate scrutiny and strict scrutiny standards in reviewing constitutional rights cases. In California law, there is only rational basis and strict scrutiny. The court here declined to add intermediate scrutiny to California law as suggested by the California Attorney General in his arguments.

The court declined to find a constitutional right for same-sex marriage specifically, instead rolling it into the rest of the marriage rights cases under a general right to marry. The lower appellate court held that plaintiffs in the original case were looking for a constitutional right to same-sex marriage, contravening the plaintiffs' actual filings that sought equal protection for the right to marry, not for a specific new constitutional right that only applied to gays and lesbians.

The court specifically struck down two statutes. One was a 1977 legislative statute specifically passed to prevent same-sex marriage. Another was a voter initiative, Proposition 22, passed in March 2000 that was controversial as to whether it applied only to recognition of out-of-state same-sex marriages or even to in-state marriages.

The court held that the Prop. 22 initiative did apply to both in-state and out-of-state marriages and that to overturn it, the legislature had to submit the question to voters. The latter question was the reason that the governor used to veto same-sex marriage bills twice before.

However, in finding both statutes unconstitutional, the voters would now have to pass a constitutional amendment to purposely discriminate against gays and lesbians by denying them the right to marriage. Given the recognized right prior to the election, it places the amendment initiative in the new context of removing an established right, rather than denying a theoretical one.

That probably wouldn't pass muster under the U.S. equal protection clause given the U.S. Supreme Court's decision in Rover v. Evans in 1996. The court held against Colorado voters who passed an anti-gay constitutional amendment based on equal protection, using the lower rational basis standard. Colorado voters amended their constitution to deny the state and local governments the power to establish any gay rights legislation in the state.

The U.S. Supreme Court found that gays and lesbians were not being given special rights. Instead, the Court found that gay rights laws simply declared and provided notice that the same rights that everyone else enjoyed also applied to the LGBT minority group. Given that the California Supreme Court found that the general right to marry also applied to the LGBT minority group, the law seems analogous should the state constitutional amendment initiative pass in November.

CNN is reporting that this decision will likely be appealed to the U.S. Supreme Court. The California court decided the matter exclusively using the state constitutional law, so it seems implausible that a tenable federal question could be sustained in a federal cause of action.

A state supreme court is always the final arbiter of state constitutional questions. The U.S. Supreme Court can only intervene when there is a federal question. The only possible argument that I can conjur for an appeal is if straight opponents feel that their right to equal protection or some federal right was trampled unconstitutionally by the state supreme court decision. I can't fathom such an argument having enough substance to sustain any level of scrutiny, much less making it past a motion to dismiss.

Another interesting note is that six of the seven California Supreme Court justices who were nominated by Republican governors. Only one was appointed by a Democratic governor. It is only a 4-3 decision, but it means that 3 of the 4 in the majority are Republican appointees and are presumably Republicans themselves. That's momentous.

Finally, what many have missed is that the Court holds that sexual orientation is a suspect class and that strict scrutiny applies under the California constitution. The court disassembles the contorted argument used in other cases around the country that discrimination against gays and lesbians is sex (gender) discrimination.

In its place, gays and lesbians now are a protected class specifically, along with gender and race, in California. This makes it a much more important and far-reaching opinion than just one on same-sex marriage.

The decision becomes final in 30 days, after which the first marriages can take place. The full opinion can be downloaded here.