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.
It would be a mistake to see In re: Marriage Cases, even if upheld (it is being appealed to the California Supreme Court), as a ringing affirmation of society's unique interests in traditional marriage. Though it alludes to the theory that the purpose of marriage is to encourage stability in those relationships that are most likely to produce children--and that are uniquely capable of producing unplanned children--the court does not endorse this view, because California attorney general Bill Lockyer disavowed it in presenting his case. Other dicta in the opinion suggest that, on a full trial record with adequate expert testimony (not present here), this court might be willing to hold that homosexuals do, after all, fit the criteria of a "suspect classification"--which would mean "strict scrutiny" (and probable overturning) for any state classifications based on sexual orientation.
The dissent by Judge J. Anthony Kline is a long exercise in a familiar methodology: generality inflation. The Supreme Courts of both the United States and California have held that their respective constitutions contain a "right to privacy," haven't they? Of course they have. And privacy shouldn't be confined merely to the things the courts have previously applied them to, should it? It should be generalized, so as to include anything that contributes to individual self-fulfillment, right? Well, maybe so, in a late-night college bull-session sort of way.
Then there are the miscegenation cases. They held that "marriage" means a self-defined yet state-recognized relationship with anyone at all, right? Well, no, they didn't--but we can easily generalize to reach that conclusion. There are enough dicta there to create the effect, and where the dicta fall short, there are lots of law review articles to cite. (That's how we govern ourselves, right? See what the law profs say in their learned journals?)
In fairness to Judge Kline, generality inflation has not been unknown in the U.S. Supreme Court. Griswold did not make Roe legally necessary, just culturally predictable: Roe took the Griswold right (privacy of a married couple) and raised it to a higher level of generality ("broad enough to include . . ."). And so it has frequently gone in the Court's post-1965 "privacy" cases.
So Judge Kline has not made up a novel methodology: His dissent uses a tried-and-true tactic for putting judges at the forefront of (what they take to be) social progress. But more and more state courts, it would appear, are concluding that, in a democracy, that is not where judges normally belong.
David M. Wagner teaches constitutional law at Regent University and blogs at ninomania.blogspot.com.