Waldlaw Blog

Thursday, May 15, 2008

The Right to Marry in California

For those of you who haven't already heard, this morning the California Supreme Court ruled that same-sex couples have a constitutional right to marry. Nuptials should start sometime this summer. At its core, this decision is all about family. The Court today rendered a clear ruling that California families -- and especially California families with children -- are entitled to full protection of the law regardless of the sexual orientation of the parents. The majority decision is 121 pages long, with one concurring opinion and two dissenting ones. That's a lot of reading, and I will admit that I haven't even had time yet to carefully digest the majority opinion, so a true, detailed analysis of the decision will have to wait for another day. But let me just share a few highlights. The Court found that the right to marry, as a matter of California constitutional law, includes "the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage." Miraculously, for the lawyers in the house, the Court found that sexual orientation is a suspect classification, and that "the strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation." The Court concluded that "the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples [marriage] and the designation available to same-sex couples [domestic partnership] impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples." The Court, interestingly, adopted as its own the argument put forward by marriage equality proponents, that the two separate designations violate the privacy rights of lesbians and gay men by forcing us to "out" ourselves in various situations where our sexual orientation would otherwise be irrelevant. "[O]ne consequences of the coexistence of two parallel types of familial relationship is that -- in the numerous everyday social, employment, and governmental settings in which an individual is asked whether he or she 'is married or single' -- an individual who is a domestic partner and who accurately responds to the question by disclosing that status will (as a realistic matter) be disclosing his or her homosexual orientation, even if he or she would rather not do so under the circumstances and even if that information is totally irrelevant in the setting in question." In the end, and repeatedly, the Court found that to not allow same-sex couples the right to marry is to dishonor our families -- and to dishonor our children -- in a way that does not befit California in 2008. "While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children." As our Supreme Court made clear today, California is better than that.


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