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Court Likely To Approve Same Sex Marriage

New America Media, News Analysis, Manuela Albuquerque Posted: Mar 08, 2008

Editor's Note: It will be almost three months before the California Supreme Court hands down a verdict on whether the state's marriage law prevents gays and lesbians from tying the knot, but former Berkeley City Attorney Manuela Albuquerque is sure the court will invalidate the marriage law's restriction to opposite sex couples as a violation of the California Constitution.

One of the benefits of job transitions is that you can indulge your whims while you ponder your next move. Okay, so watching oral arguments in the gay marriage cases before the California Supreme Court was not exactly a bold and dramatic departure from my last day job as Berkeley city attorney. But it was fascinating, and something I would never have had the time to do before. Over the extremely enlightening and lively three-hour oral argument, all theories and defenses were discussed in detail, with all justices asking pointed questions. Yet, the subsequent media coverage was about as clear as mud. Instead of grumbling to myself, I decided to weigh in. Hence this analysis - designed as a lay persons guide to the gay marriage cases legal terrain and the import of the justices questions.

First, the bottom line: I predict that the court will invalidate the marriage laws restriction to opposite-sex couples as a violation of the California Constitution. The opinion will likely be authored by Justice Werdegar and it will garner a minimum of three other votes from the Chief Justice, and Justices Kennard and Moreno. (It takes four votes for a majority opinion on this seven-member court.) It is quite possible that the opinion will be unanimous because the three remaining justices are having analytical difficulty finding a conceptual rationale to uphold the opposite-sex restriction even though, from their questions, it appears that they are troubled at the prospect of striking it down.

The state marriage law defines marriage as between persons of the opposite sex. This restriction is being challenged on two principal grounds -- as an unconstitutional intrusion into the fundamental constitutional right to marry a person of ones choice, and as a denial of equal protection of the law to gay and lesbian couples or unconstitutional discrimination.

The California constitutional right to marry a person of ones choice was established as a fundamental right in a California Supreme Court case in the forties, striking down a ban on interracial marriage. If a law restricts a fundamental right, the law must be supported by a compelling state interest. Generally, it is very difficult for a challenged law to meet the compelling state interest test.

A challenged law may also have to scale this higher constitutional bar if it discriminates against a suspect classification. Race and sex are, for example, suspect classifications. But so far, sexual orientation has not been found to be a suspect classification. It is an open question.

Legislative classifications against new groups can be designated suspect based on such factors as whether the group in question has a long history of being discriminated against. Additionally, the discrimination must be based upon immutable factors that are neither feasible nor reasonable to require be changed.

The Attorney General has conceded that sexual orientation is such an immutable characteristic. It appears that a majority of the justices are likely to hold that sexual orientation is a suspect classification.

Even where a discriminatory law does not invade a fundamental right, it can be upheld as constitutional only if it has a legitimate legislative purpose or rational basis. So, under either constitutional test the easier one or the really difficult one the state must offer up a credible public policy explanation of why it is excluding gays and lesbians from getting married. Therein lies the rub.

The state of California has passed sweeping laws to prevent discrimination against gays and lesbians in many areas, including allowing them to adopt children. It has also created a domestic partnership law that gives domestic partners virtually all of the rights and responsibilities of marriage. Many of these laws have lengthy findings about the terrible history of discrimination against gays and lesbians, and why excluding them from various rights and privileges has no basis. The passage of these laws makes it virtually impossible for the state to come up with any justification for discriminating against gays and lesbians since virtually every rationale would be inconsistent with an existing State law and its findings.

Because of these severe practical constraints, the Attorney General and the Governors lawyers found themselves limited to arguing that the law reflects longstanding historical tradition to restrict marriage to persons of the opposite sex. But weve always done it this way is, of course, not a constitutional defense and the Attorney General seemed almost embarrassed to be making this argument, especially when various justices pointed out that many illegal discriminatory practices including treating women as property in marriage, saying women were not qualified to do most jobs, permitting marital rape and prohibiting interracial marriages also had a long tradition.

Justice Corrigan asked the challengers why the court should not leave the issue of gay marriage to the legislature or voters to decide, since when the Constitution was first adopted it was probably assumed that marriage was between persons of the opposite sex. She, however, quickly conceded that the Constitution is not interpreted based on any theory of original intent. All parties conceded that the court could not leave constitutional questions to voters. The courts have to decide whether a law violates the Constitution. The voters can always amend the Constitution if they disagree.

Justice Chin was also clearly troubled by the unpalatable prospect of the court invalidating a state law, especially since the opposite-sex restriction was adopted by voters in a state initiative some years ago. He tried out a no harm, no foul approach to upholding the law, asking whether the challengers were elevating form over substance by pushing to have their unions recognized as marriages rather than domestic partnerships, even though domestic partners had substantially all of the rights of married persons.

The challengers response was that marriage was far more than a bundle of legal rights and responsibilities. It elevates the unions to a societal stature of solemnity and respect and connotes a type of commitment that is simply not the same as a domestic partnership and it was this aspect of marriage that was being denied to gays and lesbians.

Later in the argument, the groups opposing same-sex marriages made much the same point about the special important role and status of marriage. They argued that allowing gay marriage would dilute the special status of marriage. Justice Chin immediately observed that the opponents of gay marriage were in effect making the very arguments made by the proponents of gay marriage, that the institution of marriage was a special and important one. So much for the no harm, no foul approach to upholding the opposite-sex restriction.

Justice Baxter seemed to be trying out a unique theory - not seemingly supported by any other Justice or the parties - that the domestic partnership law was unconstitutional because it was an end-run by the legislature around a voter-adopted state initiative that marriage was between members of the opposite sex. The Attorney General flatly rejected the premise that the domestic partnership law was invalid. It seems unlikely that Justice Baxter would attempt to justify the opposite-sex restriction by invalidating the domestic partnership state law whose provisions are not under challenge before the court.

The three Justices who seemed to be reluctant to strike down the opposite-sex restriction on marriage thus do not seem to have identified any analytical justification for upholding the law. For this reason, they may very well join the narrowest approach to invalidating the marriage restriction, finding that there is no rational basis for it in this case because of the legislatures sweeping prohibition against discrimination against gays and lesbians but declining to say whether the fundamental right to marry a person of ones own choice applies to same-sex marriages or whether sexual orientation is a suspect classification.

Justices Moreno, Werdegar and the Chief Justice in various questions to both sides seemed to signal that they would treat the 1940s case invalidating the ban on interracial marriage as establishing a broad fundamental right to marry a person of ones own choice and then conclude that there was no compelling state interest to intrude into that right by prohibiting same-sex marriage. Other questions from Justice Kennard and Justice Werdegar seemed to reflect impatience with using a longstanding tradition as justification for the opposite-sex restriction. All four Justices at various times pointed to unlawful and abhorrent practices that had been part of longstanding traditions. I believe they will conclude that the states justifications do not even meet the rational basis test, let alone the compelling state interest test.

Finally, the issue of remedy was discussed. It seems that the court will simply invalidate any restrictions on marriage to members of the opposite sex. It will not require any further action by the legislature. The courts decision must be issued within 90 days of the oral argument.

Id say get ready for gay and lesbian June weddings.

Manuela Albuquerque recently retired as City Attorney of the City of Berkeley after 22 years. In 2006, she won Evans v. City of Berkeley before the California Supreme Court, when the Court upheld Berkeleys denial of subsidized Marina Berths to a Boy Scout affiliated Berkeley sea-scouting troop because of the Scouts policies excluding gays and atheists. As City Attorney of Berkeley, she joined the City of West Hollywoods friend-of-the-court brief in the gay marriage cases supporting the argument that the State law was unconstitutional.

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