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OutRight: California’s Potential

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With its marriage ruling, the state’s top court may have a national influence.

DaleColorBy Dale Carpenter

So the California Supreme Court did it. In an extraordinary, sophisticated, and far-reaching opinion, the court held (1) that the fundamental right to marry protected by the state constitution includes the right of same-sex couples to marry, and (2) that exclusion of same-sex couples from marriage amounts to impermissible sexual-orientation discrimination. The opinion is much stronger analytically than the path-breaking Massachusetts marriage decision from 2003.

The impact of this decision will be political, cultural, and legal. It is the potential legal impact that I will address in this column.

The California decision injects new life into the litigation strategy for obtaining same-sex marriage. It does so in the obvious way that future gay-marriage litigants will be able to cite it as persuasive authority in other states for its ultimate holding that there is a constitutional mandate to allow gay couples to marry.

But it does so additionally because the court that issued it is careful, cautious, and well-respected. The decision is the product of a moderate Republican court (six of whose seven members were appointed by GOP governors), not a liberal “activist” one.

More specifically, it could be influential in a case pending before the state supreme court in Connecticut, which addresses the similar question whether the state may withhold the title of “marriage” from same-sex couples when the state has granted them all of the benefits of marriage under state law.

Other states with civil unions—like New Hampshire, New Jersey, and Vermont—can similarly expect renewed efforts to persuade their state courts to extend marriage itself to same-sex couples.

A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted almost all of the substantive rights of marriage to gay couples under the state’s domestic partnership laws. The California court emphasized this point throughout the opinion.

Having granted all the rights of marriage to gay couples, the court held that the state could not stop there. As I’ve argued before, this kind of decision provides political ammunition to opponents of legal rights for gay families who will warn state legislatures against moving toward any recognition lest state courts require the state to recognize full marriage.

But I think this potential limitation on the impact of the California ruling has more bark than bite for two reasons.

First, the California court held that the fundamental right to marry includes the right of same-sex couples to marry, just as it concluded in 1948 that the right to marry includes the right of interracial couples to marry. The California court did not hold that there is a new and separate fundamental right to something called “same-sex marriage.” This holding is a first for a state high court in marriage litigation.

The California court’s conclusion about the inclusion of gay couples within the pre-existing fundamental right to marry does not itself depend on whether the state has previously created a status for them substantively approximating marriage. The decision depends instead on the substantive interests in personal autonomy, dignity, happiness, and familial fulfillment protected by the right to marry—interests that gay families share with heterosexual ones.

So even if California had not enacted the domestic partnership laws for same-sex couples, the California court should have concluded under its own logic that they were included within the fundamental right to marry. This holding should have some influence on courts in other states.

Second, the holding that excluding gay couples from marriage is impermissible sexual-orientation discrimination also does not depend on whether the state previously enacted domestic partnership laws. If the substantive right of marriage, and the dignitary interest in having the relationship called “marriage” by the state, cannot be denied on the basis of sexual orientation, it should not matter whether the state has left gay families completely without legal protection or has protected them but withheld the title “marriage.” This holding, too, has potential to influence sister state courts in future marriage litigation.

Another possible limitation on the long-term influence of the decision is that California voters may effectively reverse it in November by voting for a state constitutional amendment banning gay marriage. If that happens, as it did in Hawaii to a pro-gay-marriage ruling in the 1990s, courts in other states will feel freer to ignore the decision. However, the logic and specific legal holdings of the California decision may still be persuasive.

None of this means that courts in other states will follow the California decision. They are free to reject it. They can rely on the larger number of state high courts that have rejected claims for same-sex marriage. They can say that California is unusual in its legal development toward the recognition of gay families. They can distinguish their own precedents from the California precedents. As a practical matter, they may feel pressured to rule against same-sex marriage because they face elections.

My prediction is that we will not see an avalanche of gay-marriage victories in states across the country in the near future. California was one of the last hopes of the gay-marriage litigants, who have lost in many states where the state judiciary was thought to be sympathetic. The litigation strategy hangs by a thread. But, as an analytical and intellectual matter, California’s supreme court has set the bar higher than ever before.

Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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