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Thursday, May 15, 2008

If I May Intrude…

posted by on May 15 at 10:43 AM

… on Dan’s analysis of the CA marriage decision, it strikes me that the Court’s decision to go with strict scrutiny is the most important and courageous element of the opinion. If you recall, the Washington State Supreme Court went with so-called “rational basis” review, which basically permits the court to assume and applaud any irrational justification whatsoever on the part of the legislature that enacted the offending legislation (DOMA, in that case).

Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential “rational basis” standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review — “strict scrutiny” — is applied when the distinction drawn by a statute rests upon a so-called “suspect classification” or impinges upon a fundamental right. As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

I’m not a lawyer, but I do know this: Getting “suspect class” designation is paramount. Armed with the strict scrutiny that the “suspect class” designation triggers, the court can be much more skeptical about the motives of the legislature.

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You should be a lawyer.

Posted by StrangerDanger | May 15, 2008 10:53 AM

Well actually in the 2nd page of the opinion they mention our marriage case (Wn 2006), noting that it was the recent moves by the CA legislature to legalize marriage-like DPs that influenced their decision to strike down separate but equal in this case. Seems they took their cues from the legislature anyway, just on the side of SS marriage being OK, not wrong.

Posted by calvin | May 15, 2008 11:04 AM

@2: Yep, they reference the contrast with the situation in WA at the time of Andersen, but it's really not a question of whether the court senses the legislature's going in the right direction overall, and they're trying to go with the flow. It's about saying, OK, this law may look discriminatory on its face (especially since, here in CA, we have nearly identical domestic partnerships), but do we even have the right to overturn something enacted by the legislature, which is elected by and represents the will of the people? The WA court said no, gays and lesbians are not a special class (like women or black people, for instance) who require extra protection from the courts. Thus, any law affecting gays and lesbians is pretty much assumed in WA to be OK--it really doesn't matter whether there exists a separate but equal partnership option. CA said, we will not assume laws affecting gays and lesbians are OK--we actually need to look at the rationale, and see if it's justifiable. They concluded here there wasn't any justification in refusing same-sex marriage. Does that make sense?

Posted by annie | May 15, 2008 11:18 AM

This might be impetus to re- visit the case here. Either way...take that Washington supreme court. And for shame.

Posted by Vince | May 15, 2008 11:19 AM

Hey a victory's a victory, right? Time to celebrate. Woo hoo!

I'm sure the closeted right-wing nutcases are just disappointed that the court didn't make same-sex marriage mandatory. They can (and will) suck it.

Posted by Original Andrew | May 15, 2008 11:28 AM

@2 again. I should also mention that the Washington State Supreme Court took the fact that gays and lesbians had recently achieved gains at the state and municipal level to mean that they were not powerless to get their aims achieved through legislative action:

Finally, with regard to the ability to obtain redress through the legislative process (the political powerless prong), several state statutes and municipal codes provide protection against discrimination based on sexual orientation and also provide economic benefit for same sex couples. 7 Recently, the legislature amended the Washington State Law Against Discrimination to prohibit discrimination on the basis of sexual orientation. Engrossed Substitute H.B. 2661, 59th Leg., Reg. Sess. (Wash. 2006). In addition, the Intervenors point to evidence that a number of openly gay candidates were elected to national, state, and local offices in 2004. The enactment of provisions providing increased protections to gay and lesbian individuals in Washington shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power. Indeed, the recent passage of the amendments to chapter 49.60 RCW is particularly significant given that, as the plaintiffs point out, the legislature had previously declined on numerous occasions to add sexual orientation to the laws against discrimination. We conclude that plaintiffs have not established that they satisfy the third prong of the suspect classification test.

It's perfectly possible that if WA did have a nearly-identical-to-marriage domestic partnership registry at the time of Andersen, that our court would have found that that was even further proof that gays and lesbians could fight discrimination at the legislative level and didn't need the Court to help out.

Perverse, but true.

@5: No, seriously, this is a bigger victory than anything Dan's talking about, in my opinion. I'm afraid CA doesn't have quite as robust an analysis in favor of strict scrutiny as they could have done, but it's still fantastic.

Posted by annie | May 15, 2008 11:56 AM

It would have been better for the California Supremes to have invoked strict scrutiny on the basis of marriage being a fundamental right, rather than gays and lesbians being a suspect class. Marriage being a fundamental right is why prisoners have the right to marry. The suspect class designation is a real Pandora's box that plays right into the wingnut's fear of a "homosexual agenda."

Posted by kk | May 15, 2008 12:01 PM

annie @ 6,

Whoops, I was actually referring to the wingers' cuckoo, hysterical,irrational belief that this ruling seemingly somehow forces them to enter into a same sex marriage.

You're absolutely right. However the chips fall, this decision is fantastic and I'm glad we finally got a ruling that respects equality.

Posted by Original Andrew | May 15, 2008 12:53 PM

California declared gender a suspect class requiring strict scrutiny long ago, but SCOTUS, and presumably other courts, require only intermediate review for gender, so in some ways, it was a smaller step for CA to take (but a very important one, since it will stand as precedence even with a constitutional amendment).

Posted by Ruby | May 15, 2008 1:54 PM

@9: Gender or sexual orientation? This decision makes minority sexual orientation a suspect class, which is a far bigger step, and one I'm not sure any other states have taken.

Posted by annie | May 15, 2008 2:05 PM


You are right - this is a much bigger deal than getting marriage rights. This means any regulation that considers sexual orientation in unconstitutional unless it is narrowly tailored to achieve a compelling state interest. This would include any regulation of housing, employment, benefits, etc. However, this can cut both ways because courts usually apply strict scrutiny symmetrically to both helpful and hurtful regulations. SCOTUS found some affirmative action programs unconstitutional because they consider race, and race is also a suspect classification.

Posted by 1L | May 15, 2008 2:42 PM

I didn't understand a word your wrote.

Marry me?

Posted by Paulus | May 15, 2008 8:00 PM

I didn't understand a word you wrote.

Marry me?

Posted by Paulus | May 15, 2008 8:01 PM

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