Kline Doesn’t Mince Words in Marriage Dissent

First District Justice J. Anthony Kline did not get cheated in his dissent today in the same-sex marriage cases. By the end of his 51-page opinion, he had compared his majority colleagues, William McGuiness and Joanne Parrilli, to the U.S. Supreme Court majority in Bowers v. Hardwick, the dissenting (and blatantly racist) dissenting judges in Perez v. Sharp and the Virginia appellate justices in Loving v. Virginia.

Bowers was the 1986 ruling — since overruled — upholding a law criminalizing sodomy. Perez is the California Supreme Court case establishing the right to interracial marriage, and Loving was a case in which the Virginia Supreme Court of Appeals had said the state could prevent a mixed-race couple from marrying. The U.S. Supreme Court overruled it.

“Though not its purpose, the inescapable effect of the analysis the majority adopts is to diminish the humanity of the lesbians and gay men whose rights are defeated,” Kline wrote.

The main thrust of Kline’s dissent was an argument that the city of San Francisco and gay rights supporters had raised but not emphasized: privacy. Kline wrote that in light of California’s constitutional right of privacy and the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas (overruling Bowers), gay couples enjoy an autonomy right to marry.

He also blasted the majority’s reliance on the historical definition of marriage to decide the case. “As they see it,” Kline wrote, “the concept of same-sex marriage is an oxymoron: Because the statutory definition of marriage as a relationship between members of the opposite sex represents what they consider the unalterable nature of things, these courts treat the right of same-sex couples to marry as constitutionally unsupportable as a claim of the right to be 10 feet tall.”

“We are not being asked to redefine marriage,” Kline insisted, “but simply to say that the Legislature cannot define it in a way that violates the constitution.”

Kline further argued that court should “abandon the increasingly transparent pretext that sexual orientation is not a ‘suspect classification,'” and accord strict scrutiny to the claim in this case. He underscored the comparison to the interracial-marriage cases, arguing that strict scrutiny applied there even though interracial marriage was not “deeply rooted in this nation’s history and tradition” at the time the cases were decided.

He compared McGuiness’ arguments to those in Loving v. Commonwealth, the Virginia court opinion that would ultimately be overruled by the Supreme Court. “Such arguments are properly addressable to the legislature,” Kline quoted the Virginia court, “which enacted the [ban on interracial marriage] in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, not legislate.”

Kline argued that even if strict scrutiny doesn’t apply, heterosexual-only marriage should fail pass the rational-basis test. California’s Domestic Partner Act does not provide the same benefits as marriage, Kline argued, but instead is “similar to the doctrine of ‘separate but equal’ in that it also serves to legitimate and perpetuate differential group treatment.”

He concluded: “To say that the inalienable right to marry the person of one’s choice is not a fundamental constitutional right, and therefore may be restricted by the state without a compelling need, is as terrible a backward step as was the unfortunate and now overruled opinion in Bowers.”

McGuiness dismissed Kline’s dissent as “essentially an impassioned policy lecture on why marriage should be extended to same-sex couples.” 

— Scott Graham

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