THE FUTURE ain't what it used to be. You can't count on the inevitable any more. When the highest court in Massachusetts announced on November 18, 2003, that a right to same-sex marriage was contained in the Bay State's 226-year-old constitution, it seemed as if that court's self-concept--boldly leading a retrograde nation into a brave new world--might pan out.
Almost three years later, precisely zero state courts of last resort have agreed. The high court of that electric-blue state New York has strongly disagreed. The latest court to weigh in (at 131 pages) is an appeals court in that other blue-state paradise, California, which on October 5 reversed a trial court in four cases combined under the name In re: Marriage Cases.
The California court, like the one in New York, holds that a decision to recognize same-sex marriage must rest with the legislature and/or the referendum process--in a word, with the people. In the meantime, the Golden State's referendum-passed law barring same-sex marriage--Prop. 22, which passed by a 61-39 margin in 2000--is not irrational, and so must be upheld. (Full disclosure: One of my former students represented the appellant in the California case, and another represented an amicus curiae.)
In a long and somewhat repetitive opinion for the 2-1 majority, Presiding Justice William R. McGuiness hits the major points that are familiar from the New York opinion (and the Massachusetts dissents): Classifications based on sexual orientation get "rational basis" scrutiny, not "strict scrutiny"; California's marriage law is not discriminatory because it affects
both sexes equally and is not part of a system of either male or female superiority; the "rational basis" test is deferential to legislators (or voters in a referendum); finally, and above all, major cultural transformations (as even the Massachusetts court admitted it was carrying out) should be the work of the people, not judges.
In addition, the court notes a tension between two of the arguments from the same-sex marriage advocates: the right of privacy, and the right of expression. First, it says, the right of privacy is not an infinitely malleable vessel: It has legal contours, and those do not yet include same-sex marriage. As for the right of expression--which is inherently public, and therefore sits awkwardly beside an argument based on privacy--California's law restricting marriage to a man and a woman forbids no expressive act. It only denies state assistance in one particular act--getting married--that is less an act of personal self-expression than one of self-joining to a communal paradigm.
A pervasive presence in this opinion is the Domestic Partnership Act California first adopted in 1999--i.e., civil unions. The advocates of this measure no doubt thought themselves properly progressive, but to the respondents and the dissenting judge here, they were actually retrograde: They gave same-sex couples every legal right except marriage, and thereby created--wait for it--a system of separate but equal.
Um, no, says the majority. California is in the forefront of giving same-sex couples legal recognition. The state's Domestic Partnership Act in fact renders untenable any charge that California law as a whole is bigoted against gays.
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