Tuesday, May 26, 2009

The Good News in Today’s California Marriage Decision

Andrew Koppelman

I agree with Mary Dudziak’s smart post on today’s California Supreme Court decision upholding Proposition 8, which abolished same-sex marriage in that state (though it did not retroactively nullify marriages already validly celebrated). If anything, she has understated the pro-gay valence of the opinion: the Court held that a broader restriction on same-sex couples’ rights might well have been invalid, and that same-sex couples in that state continue to have a constitutional right to have their relationships recognized. Like Vermont (which has since enacted marriage by legislation without court prompting) and New Jersey, California is constitutionally required to provide domestic partnerships with all the same rights and obligations as heterosexual marriage. Discrimination on the basis of sexual orientation remains unconstitutional. In short, most of the holding of the Court’s earlier marriage decision remains untouched by Proposition 8.

The central issue in the case was whether Proposition 8 was an “amendment,” in which case it was valid, or a “revision,” which, under California constitutional law, cannot permissibly be done by referendum. The distinction is an abstruse one, but the Court went some way toward clarifying it. It held that a revision is a “wholesale or fundamental alteration of the constitutional structure,” and Proposition 8 did not accomplish that.

It reached this conclusion, however, by construing Proposition 8 to have a very narrow effect on preexisting law, including its own previous decision in the Marriage Cases that the right of same-sex couples to legal recognition was protected by the California constitution.

The key paragraph is the following (from pp. 92-93 of the slip opinion):

“Proposition 8 does not eliminate the substantial substantive protections afforded to same-sex couples by the state constitutional rights of privacy and due process as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. Rather, same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples — including the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses — with the sole, albeit significant, exception that the designation of “marriage” is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples. Similarly, Proposition 8 does not by any means “repeal” or “strip” gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of “marriage” to describe their relationship. Thus, except with respect to the designation of “marriage,” any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally “suspect” under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion. Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse (cf. Romer v. Evans (1996) 517 U.S. 620), would constitute a constitutional revision under the provisions of the California Constitution. A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California Constitution.”

The less remarkable part of the opinion was the part holding that Prop. 8 did not have retroactive application. The Court relied on the established principle "that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (P. 129)

Unfortunately, it unnecessarily weakened the logic leading to this sensible conclusion by buttressing it with the following implausible parade of horribles:

“A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court.”

But if Proposition 8 only affected the label of marriage, as the earlier part of the opinion had just held, then retroactive application would simply have converted those relationships to domestic partnerships, which under California law create the same property rights as marriages, don’t they?

The bottom line is that sexual orientation remains a suspect classification in California. Same-sex couples can’t be disadvantaged in any tangible way without a compelling reason. And a constitutional amendment that restricted their rights more than Proposition 8 did might – the Court won’t say – be invalid. Not a good day for same-sex couples, but hardly a disaster.

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