Marriage ruling gave
By Greg Moran, from
the Web, February 23, 2009
Tucked deep within the state Supreme
Court's sweeping decision in May that struck down same-sex-marriage bans for a
time is a single sentence that will have a significant effect for years –-
regardless of any new turns in the same-sex-marriage debate.
On page 100 of the 124-page ruling, in dense legal prose, Chief Justice Ronald
George ruled that a special constitutional protection applies to people based on
their sexual orientation.
In essence, the court said discrimination against gays and lesbians was
equivalent to racial, age or gender discrimination, giving same-sex-rights
advocates a powerful legal weapon in the future.
Already the first echoes of that determination are being heard in some of the
arguments that will be made in the upcoming challenge to Proposition 8, the
voter-approved measure that rebuked the main aspect of the court's May ruling
and declared that only marriages between men and women are valid.
The special protection the court gave in May -– which Proposition 8 does not
affect –- means that any state law or policy that is alleged to discriminate
against gays and lesbians now will be analyzed under the most stringent legal
standard a court can apply. Few laws survive such a test, known as “strict
No other state supreme court in the United States has gone so far in giving gays
and lesbians such legal status.
Laws the Legislature has passed over the past several years already prohibit
discrimination based on sexual orientation in employment, health care and other
areas. Julie Greenberg, a law professor at Thomas Jefferson School of Law
and an expert on sexual-orientation legal issues, said the court's finding
strengthens those protections significantly.
It would be harder for judges to use sexual orientation as a reason to deny gays
and lesbians certain rights, such as in child-custody cases and employment
cases. And if in the future a new Legislature wanted to roll back some of
the laws extending protections to gays and lesbians, it would be impossible,
While the focus of attention on the contentious issue has been the court's main
action striking down same-sex-marriage bans, legal experts have said that the
decision to elevate sexual orientation to the same level of protection as race
and other categories was nearly as important.
Shaun Martin, a law professor at the University of San Diego School of Law, said
it “will make it easier for gays and lesbians to strike at non-marriage laws
that may subtly or not so subtly discriminate against them.”
“You are going to have over the next 10 years lawsuits against government for
doing things that have an adverse impact on gays and lesbians. And they
will cite this case a lot,” Martin said.
The arguments that state Attorney General Jerry Brown makes against Proposition
8 are an example of how the decision is being used now.
Brown surprised many when he changed positions several weeks after voters
approved the proposition in November, from initially saying his office would
defend the measure to urging the court to overturn it.
In court papers, Brown said the California Constitution declares certain rights
to be fundamental, such as liberty and equality. In its marriage decision
in May, the court said the right to marry was part of that.
Where fundamental rights intersect with the heightened legal protections given
to minorities and others, those rights can only be taken away if the state can
show there is a “compelling interest” to do so, Brown said, and Proposition 8
lacks that compelling interest.
Opponents derided Brown's legal argument.
“The practical result of the Attorney General's theory is that the people can
never amend the Constitution to overrule judicial interpretations of inalienable
rights,” wrote Kenneth Starr, former U.S. solicitor general and the attorney for
the Proposition 8 supporters.
Legal experts also doubt that Brown can persuade the court to accept his
“I strongly doubt the court will buy that certain rights are categorically
inviolate even through the amendment process,” said Martin of USD.
Proposition 8's legal opponents have developed another line of attack to pursue
in the March 5 oral arguments before the Supreme Court, one that Martin and
others say is not as far-fetched. It holds that Proposition 8 amounted to
a revision of the constitution, not an amendment. A revision to the
constitution, which changes the basic structure of government, must be first
passed by the Legislature and then put before voters.
But that argument also benefits from the heightened status gays and lesbians now
have. Some Proposition 8 opponents contend that denying a fundamental
right to a protected class of citizens amounts to a revision of the structure of
the constitution, said Kenji Yoshino, a law professor at NYU School of Law who
has written about the same-sex-marriage decision.
Such a “deeper change to the constitutional order” can't be done through an
amendment, he said.
Attacking Proposition 8 in this way was somewhat easier because the court
elevated the status of gays and lesbians, said Karl Manheim, a law professor at
Loyola Law School in Los Angeles who filed a brief urging the court to overturn
the measure. Manheim supported the argument that Proposition 8 is an illegal
Without the designation of sexual orientation as a special legal class,
attacking Proposition 8 as an overbroad revision “would be a much harder
argument to make,” Manheim said.
If the court upholds Proposition 8, gays and lesbians will still have an
important legal victory going forward with the heightened status the court
granted them in May.
“Essentially, it is going to be very hard for the state in any way to make
distinctions between gays and straight people,” Yoshino said. “And it's
portable. It travels with gays and lesbians outside the context of
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