Majority: Heterosexual-Only Marriage Rational

Justice William McGuiness’ majority opinion today upholding opposite-sex only marriages largely followed the path taken by state courts in New York and Washington, concluding that the right to same-sex marriage is not fundamental — and therefore not subject to heightened scrutiny — and that it survives a rational-basis review.

The key issue on whether the right is fundamental is how it is defined. The city of San Francisco had argued on behalf of same-sex couples that it is the right to marry the person of one’s choice. But McGuiness and Justice Joanne Parrilli disagreed.

 “Everyone has a fundamental right to ‘marriage,’” McGuiness wrote, “but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner.

Therefore, the majority defined the issue at stake as the right to marry a person of the same sex, which it concluded is not fundamental.

The majority acknowledged that “on the surface, the interracial marriage cases appear to provide compelling support for finding gays and lesbians have a fundamental right to marry their same-sex partners.” But in the end it concluded the analogy is flawed.

“These laws were subjected to strict scrutiny because they drew distinctions based solely on the race of potential spouses, and race has long been recognized as a suspect classification,” McGuiness wrote. “… The laws were doubly evil for equal protection purposes because they denied people a fundamental right (marriage) based upon the most suspect of classifications (race).

McGuiness said that some day homosexuals may be considered a suspect class due heightened judicial scrutiny, but not yet. “We do not presume to hold same-sex marriage will never enjoy the same consitutitional protection as is accorded to opposite-sex marriage,” he wrote. “… However, these developments are still in their infancy, and the courts may not compel the change respondents seek.”

The majority went on to reject arguments that the Family Code discriminates on the basis of gender. It did acknowledge that the statute “classif[ies]” on the basis of sexual orientation, but it found that did not warrant strict scrutiny, noting that the 2003 U.S. Supreme Court gay rights ruling Lawrence v. Texas did not apply strict scrutiny to the anti-sodomy statute it struck down. The California Supreme Court has not yet decided whether gays are a suspect class, and Superior Court Judge Richard Kramer took no evidence on whether homosexuality is an immutable trait — which is a requirement for a suspect class. “We decline to forge new ground in this case by declaring sexual orientation to be a suspect classification for purposes of equal protection analysis,” McGuiness wrote.

McGuiness also found that heterosexual-only marriages did not violate gays and lesbians’ right to privacy. He acknowledged that Lawrence created a privacy right for intimate conduct, but concluded that did not extend to marriage. “The right to be let alone from government interference is the polar opposite of insistence that the government acknowledge and regulate a particular relationship,” he wrote.

McGuiness then held that it is not irrational for the Legislature to limit marriage to heterosexual couples.  “Under the highly deferential standard of review that applies,” he wrote, “we believe it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union, while at the same time providing equal rights and benefits to same-sex partners through a comprehensive domestic partnership system.The state may legitimately support these parallel institutions while also acknowledging their differences.”

More on the dissent shortly. 

— Scott Graham


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