The dissent opens with these harsh words:
The power of a state to regulate and control the basic social relationship of marriage of its domiciliaries is here challenged and set at nought by a majority order of this court arrived at not by a concurrence of reasons but by the end result of four votes supported by divergent concepts not supported by authority and in fact contrary to the decisions in this state and elsewhere.
The three member minority of the California Supreme Court lashed out at the judicial activism of the four member majority for changing the way marriage had always been in California. But that wasn't today's marriage case. It was the case of Perez v. Sharp from 60 years ago in which a 4-3 decision of the California Supreme Court made it the first court in the land to declare that the state could not constitutionally prohibit interracial marriages.
As I'll explain below, I feel the court today In re Marriage Cases (pdf) did not pay sufficient attention to certain aspects of the Perez case, but it did rely on it repeatedly to support its opinion that it must carefully examine the rationale for why there is a fundamental right to marry and in doing so it is clear that this right extends to the right of same-sex couples to marry and have their marriages treated with the same dignity and respect the state affords other marriages. The court today summed up the constitutional right of Perez succinctly:
Accordingly, in deciding whether the constitutional right to marry protected by the California Constitution applies to same-sex couples as well as to opposite-sec couples and, further, whether the current California marriage and domestic partnership statutes deny same-sex couples this fundamental constitutional right, we shall examine the nature and substance of the interests protect by the constitutional right at issue--that is, the importance to an individual of the freedom "to join in marriage with the person of one's choice"--in determining whether the state impinged upon the plaintiffs' fundamental constitutional right.
(p. 52. Italics added to Perez quote by the court. I added the boldface.)
Where the court got Perez wrong, though, is in its opinion that it could not be relied on for the proposition that there was an equal protection violation on the basis of sex (that is, gender) discrimination. It said Perez could be distinguished because it prohibited only intermarriage that involved White persons and thus the statutes involved "unquestionably reflected the kind of racial discrimination that always has been recognzied as calling for strict scrutiny under equal protection analysis" (p 86). I believe the court neglected to give much consideration, though, to the fact that at the time of Perez it wasn't so clear that an anitmiscegenetation statue violated equal protection at all. Perez was decided in 1948--before Brown--at a time when separate but equal facilities were still perfectly permissible. The court in Perez carefully and correctly pointed out that even if it is acceptable to have separate schools or train cars, there is no "equal" substitute for the person one chooses to marry.
Fortunately the court today did decide an equal protection violation occurred. It simply chose to draw a distinction between sex discrimination and sexual orientation discrimination. The court was following its own precedent from the 1979 case Gay Law Students Assoc. v. Pacific Telephone and Telegraph (pdf) but I wish it would have finally recognized that sexual orientation discrimination is merely one type of sex discrimination especially as it applies to marriage laws that traditionally encompassed certain views regarding gender roles. In any event, the issue becomes almost irrelevant as the court goes on to declare that:
In sum, we conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution's equal protection laws.
This one line may have more far reaching effects than the actual decision with regards to marriage.
Today is a great day for California and this beautiful country of ours. I just thought it worth remembering the trailblazing this same court did 60 years ago. This time it wasn't the first, but it's still in the lead. The California legislature has twice voted to allow marriage for same-sex couples and the governor vetoed because he wanted to hear from the Supreme Court. The court has spoken and now all three branches of government in California are aboard. The issue might come before the people in November. If it does I am confident that they will also support it.
Update: Please support Equality California to help in the upcoming fight to preserve this victory.