Marriage in California

This makes me so absurdly happy:

Same-sex couples have a constitutional right to marry, the California Supreme Court ruled Thursday.
The court’s 4-to-3 decision, striking down two state laws that had limited marriages to unions between a man and a woman, will make California only the second state, after Massachusetts, to allow same-sex marriages. The decision, which becomes effective in 30 days, is certain to be an issue in the presidential campaign.
“In view of the substance and significance of the fundamental constitutional right to form a family relationship,” Chief Justice Ronald M. George wrote of marriage for the majority, “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

The decision is based on the California Constitution, as George writes, so there’s no option of appeal for the state. However, as Kevin Drum notes, a state constitutional amendment banning gay marriage is already on the ballot this November, so there’ll be one last opportunity to reverse the ruling. Schwarzenegger is saying he’ll uphold the decision and opposes the amendment, which, as Matt Zeitlin says, is consistent with his past comments. Maybe now he’ll sign the legislation legalizing marriage he’s twice vetoed; it won’t be enough to counteract an amendment, but it’d enshrine the decision in democratically-enacted law, which adds some legitimacy to it.
I find the Court’s decision to apply strict scrutiny to be particularly praiseworthy, particularly this point of their logic (helpfully summarized by Eugene Volokh):

1. The California Constitution’s Due Process Clause and Privacy Clause (there’s an explicit one in California) secure a right to marry, which extends to same-sex marriages as well as opposite-sex marriages. The limit of marriage to opposite-sex couples thus must be reviewed under strict scrutiny (i.e., must be narrowly tailored to a compelling state interest).

There isn’t an explicit federal privacy clause, of course, but there is a 30-year precedent (Zablocki v. Redhail) saying that marriage is a fundamental right. Marshall only applied intermediate scrutiny there, but all the still, this makes me hopeful that some post-Obama Supreme Court will eventually use the Equal Protection Clause and the precedents of Zablocki and the California case to strike down every law and state constitutional amendment banning gay marriage. Contra Yglesias, I think the American tradition of strong judicial review is an unquestionable good. It provides a compelling counterweight to popular ignorance and bigotry, and in all but the rarest cases (I’m looking at you, Lockner) serves justice. And this ruling, and a prospective national one, sure as hell serves justice.
Mostly, I’m just happy that the biggest state in the union, the sixth largest economy on the planet, will in 30 days have damned near full legal equality for gays and lesbians, not even 40 years after Stonewall, not even 30 years after Harvey Milk was martyred. That’s remarkable progress, and the justices of the California Supreme Court, and the people of California, should be proud.

3 thoughts on “Marriage in California

  1. This sounds awfully selfish and parochial, but I remember a vague feeling of disappointment when it was Massachusetts (well, I guess Hawaii too) that was the first state to recognize same-sex marriages. After all, California is so often derided as the locus of the gomorrahization of America, so it would have been nice to see us actually live up to our socially liberal reputation. I guess that being number two ain’t bad, and I hope that some state is number 50 soon enough

  2. I think Loving v. Virginia recognized marriage as a ‘basic civil right’ in 1967, even before Zablocki. It’s one of my favorites, if only because it has such a badass name.

  3. This is actually a bad thing for us in Florida. We have a marriage amendment on the ballot in November, and this is going to energize the supporters of the ban and help them get out the vote. The end result will be more Republicans at the poll, and although Obama is already expected to lose Florida, this will almost certainly guarantee it.

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