California Supreme Court Invalidates Same-Sex Marriage Bar
by William N. Eskridge, Jr., professor of law, Yale Law School, and author of Dishonorable Passions: Sodomy Laws in America, 1861-2003 and (with Darren Spedale) Gay Marriage, For Better or For Worse: What We’ve Learned from the Evidence
In its decision today in The Marriage Cases, the California Supreme Court struck down that state’s bar to same-sex marriage. This ruling is significant for a number of reasons. The Court became only the second state high court (after Massachusetts in 2003) to require the state to issue marriage licenses to lesbian and gay couples. Other state courts have either rejected lesbian and gay couples’ constitutional claims, as in New York and Washington, or have only required states to recognize civil unions but not marriage, as in Vermont and New Jersey. Doctrinally, the Court’s opinion was potentially far-reaching, for the Justices ruled that sexual orientation was a “suspect” classification requiring strict scrutiny. For the first time in American legal history, moreover, an appellate court ruled that the constitutional “right to marry” applied to same-sex couples.
The California Supreme Court’s mandate requires state officials to start issuing marriage licenses to lesbian and gay couples. For the first time in that state’s history, sexual and gender minorities will have full rights of citizenship, and their relationships will be dignified with the sanction of civil marriage, if the partners choose. Neighboring western states will come under increasing pressure to recognize California same-sex marriages, and to consider upgrading the rights and duties accorded their own lesbian and gay couples. There is precedent for this. Sixty years ago, the California Supreme Court was the first state high court to declare different-race marriage bars to be unconstitutional, in Perez v. Sharp (1948). In the wake of Perez, almost all the western states promptly repealed their own anti-miscegenation statutes.
The California Supreme Court’s brave action will also be highly controversial, just as its invalidation of anti-miscegenation laws was controversial sixty years ago. There will be a movement to override the Court’s constitutional interpretation with a popular initiative to amend the California Constitution. If such an initiative is placed on the ballot, it will become the occasion for a huge media debate about the acceptability of same-sex marriage for the average voter. And the decision and any initiative will likely be the subjects of provocative anti-homosexual rhetoric by traditionalists. It will be a challenge for Senators McCain (the GOP nominee) and Senators Obama or Clinton (one of whom will be the Democrats’ nominee) to handle this issue without the usual platitudes and pandering characteristic of the last election cycle.