By Bill Duncan

IN RE MARRIAGE CASES
A110449
California Court of Appeals, First District
October 5, 2006
http://www.courtinfo.ca.gov/opinions/documents/A110449.PDF

After the California Supreme Court refused to recognize same-sex marriage licenses issued by the city of California, individuals and advocacy groups challenged the state’s marriage law on state constitutional grounds. The trial court ruled the law unconstitutional, holding it lacked any reasonable justification.

The court of appeals reversed. The court began by noting that the plaintiffs are “asking this court to recognize a new right,” something the courts “simply do not have the authority” to do. For the court, the core issue was “who gets to define marriage in our democratic society.” The court’s answer was “the people and their elected representatives” because “courts may not appropriate to themselves the power to change the definition of such a basic social institution.”

The court first addressed the question of whether two pro-marriage groups should have been allowed to intervene in the marriage challenge. The court held that the groups did not have standing because they would not be directly affected by a ruling on the validity of marriage.

As to the constitutional claims, the court first noted that all the cases involving a “right to marry” have involved the union of a man and a woman and there is no legal authority for the proposition that “individuals have a fundamental constitutional right to enter the public institution of marriage with someone of the same sex.” The court thus characterized the right to marry as “a fundamental right to enter a public union with an
opposite-sex partner.” The court noted that there is no “historical tradition of same-sex marriage in this country.” To the court, the novelty of same-sex marriage is what precludes a finding that it is a fundamental right. The court distinguished the cases allowing interracial marriage because with that issue, there was no such novelty.

As to the claim that marriage is sex discrimination, the court noted that marriage laws “treat men and women exactly the same” and merely mentioning gender does not create a constitutional violation. The court also noted that there was no indication that marriage laws were enacted with the intent to discriminate against either sex.

The court then noted that the laws make no reference to sexual orientation. Although the laws may have a disparate impact on homosexuals, this does not require a strict scrutiny analysis since there was no authority for such a conclusion.

As to the plaintiffs’ privacy claim, the court pointed out that marriage is “much more than a private relationship” and that the marriage laws take away no right enjoyed before. The court takes issue with the dissent: “The right to be let alone from government interference is the polar opposite of insistence that the government acknowledge and regulate a particular relationship, and afford the rights and benefits that have historically been reserved for others.”

The court summarily concluded that the marriage laws do not prevent plaintiffs from entering any relationship of their choosing so no expression claim was raised.

In assessing the rationality of the marriage laws, the court said its “role is not to look at interests served by an institution to see if it makes sense to expand the institution. That is policymaking.” The court ruled that the marriage laws were supported by the state’s interests in preserving the traditional definition of marriage and carrying out the will of its citizens.

The court concluded that the trial judge “essentially redefined marriage to encompass unions that have never before been considered as such in this state.” Since such a change must come from the people of the state the trial judge’s decision was reversed.

A concurring opinion said that “marriage has historically stood for the principle that men and women who may, without planning or intending to do so, give life to a child should raise that child in a bonded, cooperative, and enduring relationship” and that the law’s recognition of this function of marriage “is hardly irrational.” This judge argued that the process of determining appropriate rights for same-sex couples should be able to continue in society and the legislature.

There was also a dissent. This judge accuses the majority of inadvertently “diminish[ing] the humanity of the lesbians and gay men whose rights are defeated” and denying them “individual autonomy and dignity.” The dissent argued that the right to privacy should be understood as a right of “individual autonomy and personhood” and that these rights are implicit in the earlier right to marry cases. He believed the Lawrence v. Texas decision supports the plaintiffs’ claim. He concludes that the right to marry should be extended to same-sex couples. He also spends some time pressing the analogy to anti-miscegenation laws. The dissent also believes that sexual orientation should be treated as a suspect class status because (1) homosexuality is an immutable characteristic, (2) that is unrelated to a person’s ability to contribute to society and (3) there is a long history of discrimination against homosexuals. The dissent also argued that the marriage law was irrational because the domestic partner law does not treat same-sex couples the same as married couples and is thus similar to the racial policy of “separate but equal.”

Bill Duncan is the Executive Director of the Marriage Law Foundation, www.marriagelawfoundation.org