Speed Bump for California Nups

Appeals court overturns San Francisco marriage equality ruling; on to state Supremes

Rejecting San Francisco Superior Court Judge Richard Kramer’s March 2005 decision in the California marriage case, a three-judge panel of the state’s 1st District Court of Appeal ruled on October 5 that the Legislature and governor, not the court, should decide who can marry whom there.

Justice William R. McGuiness’ majority opinion goes through the paces of a constitutional analysis in painful detail, but ultimately the question boiled down to one of institutional competence and separation of powers. On the merits, dissenting Justice J. Anthony Kline argued that same-sex couples should be entitled to marry.

The result was not totally unexpected by the litigants, and might be considered more a temporary diversion than a significant setback, because the case was always destined to wind up in the California Supreme Court, which has struggled to put off having to decide it for as long as possible.

The state Supreme Court could plausibly have stepped up back in August 2004, when it ruled that San Francisco Mayor Gavin Newsom was acting beyond his powers when he authorized issuance of marriage licenses to same-sex couples that February, but it pointedly refrained. And the Supreme Court could have accelerated its review by accepting petitions from attorneys on both sides to bypass the Court of Appeal.

The wisdom of the Supreme Court’s avoidance appeared to be vindicated last summer when the California Legislature passed a marriage equality bill. Had Republican Governor Arnold Schwarzenegger signed that measure, the lawsuit would have been rendered moot. Schwarzenegger vetoed on the grounds that Proposition 22 enacting a California version of the Defense of Marriage Act, approved by voters in 2000, may have stripped the Legislature of the power to decide this question. The matter, he said, should be decided by the state Supreme Court.

Hot potato back to the high court.

McGuiness, joined in a concurring opinion by Justice Joanne C. Parrilli, found that the right of same-sex couples to marry was not a “fundamental right” for purposes of state constitutional analysis, and that sexual orientation was not a “suspect classification” in weighing the discriminatory effect of maintaining the current law. Accordingly, that law deserves a strong degree of deference and the state need show merely a rational basis in justifying it.

Kline, in dissent, argued that the case did involve both a fundamental right and a suspect classification, but that even if it didn’t, the only justifications advanced by the state did not prove even rational. His brilliantly argued dissent demolishes the majority opinion on every contested point of constitutional law, but McGuiness’ response is to characterize Kline’s opinion as an “impassioned policy lecture” that “misconstrues case law and mischaracterizes the parties’ claims and our analysis.”

At the heart of the argument between majority and dissent is the understanding of what is at stake in the case. The majority says that the plaintiffs are seeking judicial recognition of a new constitutional right of same-sex marriage. In sharp contrast, the dissent insists that they are just asking for recognition that they are entitled to be included within the fundamental right to marry already long recognized by the courts.

“Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage,” wrote McGuiness. “Judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy.”

Kline argued that many prior cases, both federal and state, laid the groundwork for the court to hold that the right to marry is a fundamental right and that gay and lesbian people, as equal citizens in society, are entitled to participate in that right. No new right need be recognized.

Kline pointed out that in narrowly focusing on a right of same-sex marriage, the majority was making the same error that the U.S. Supreme Court made in 1986 in Bowers v. Hardwick, when it characterized that case as being about the Constitution allowing gay people to engage in sodomy. The U.S. Supreme Court corrected that error in 2003 in Lawrence v. Texas.

California law includes an expansive domestic partnership statute and numerous court decisions acknowledging parental rights for gay people, so the state did not attempt the arguments accepted by courts in other states that reserving marriage for opposite-sex couples serves to channel procreation or reinforce the best setting for children. As a result, the court majority was left with rather lame arguments to bolster a rational basis for the current law.

McGuiness, in fact, recognized the Legislature’s gradual expansion of domestic partnership rights to the point where gay and lesbian couples have nearly all the rights California grants married couples. Still, he argued that “it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states… The state may legitimately support these parallel institutions while also acknowledging their differences.”

McGuiness insisted this was not a situation of “separate but equal” since sexual orientation is not a suspect classification as is race. Kline’s telling response was that sexual orientation discrimination should be found to be constitutionally suspect.

Ultimately, the majority’s reasoning collapses on itself due to internal inconsistency. At one point, it acknowledges that domestic partnership is not equal to marriage, at the next it insists that there is no discrimination because the law merely reflects a desire to preserve historical institutions, while at another point it concedes that the historical institution of marriage has changed substantially over time.

Kline’s dissent builds on these inconsistencies and compares the majority opinion not only to the 1986 Bowers sodomy ruling, but also to the Virginia Supreme Court ruling upholding miscegenation laws overturned by the U.S. Supreme Court in 1967.

Given the strong likelihood that the state Supreme Court will review this ruling, the differences on this appeals panel may in due time be moot. But, should the high court not take the case, the majority opinion here would stand as the last word under the California Constitution, at least for now.

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