The California Supreme Court, six of whose seven members are Republicans, has ruled that the exclusion of same-sex couples from the legal benefits is unconstitutional (pdf). The opinion isn’t lucidly formatted but if I count the votes correctly it was a 4-3 decision [confirmed here.]
After finding that marriage is a fundamental right (a premise that should be uncontroversial), the majority holds that the policy cannot survive strict scrutiny: “the purpose underlying differential treatment of opposite-sex and same sex couples…cannot properly be viewed as a compelling state interest for the purposes of the equal protection clause, or as necessary to serve such an interest.” The narrow tailoring argument is I think where the exclusion of same-sex couples from marriage benefits really runs into constitutional problems; it is hard to argue that there are state interests in marriage that cannot be advanced in any other way but to exclude same-sex couples. I will have more on the text later, but if I read it correctly the court seems to require, like the Massachusetts court ultimately did, that reserving the label “marriage” for different-sex marriages is unconstitutional.
I’ll have more on the decision later, but a few points should be made at the outset:
- First, claims that the decision that the court “usurped” the legislature should be undermined by the fact that the legislature passed legislation recognizing same-sex marriage, but had the legislation vetoed by the governor, who urged the court to resolve the issue.
- Second, you will read claims that the decision will spark a massive backlash; keep in mind that the same people made the same argument about judicial decisions in Massachusetts and New Jersey and were mostly wrong.
- Finally, Kevin Drum notes that there will almost certainly be a vote in the issue in the November; hopefully a majority of citizens will not vote to repeal the rights of some California citizens.