Same-sex marriage: Supreme Court's big "F- You"


The remarkable logic behind the historic legal decision

By Melissa Griffin of

Photo by Charles Russo

I am positively giddy! As of yesterday at 5 p.m., the California State Supreme Court's May 15th same-sex marriage ruling took effect. The County Clerk's office began issuing marriage licenses at 5:01 p.m.

In this post, I’ma try to give you the basic reasoning in the ruling (which is here: Download supreme_court_opinion.pdf). Obviously, squeezing the 121-page ruling into a three-page word document necessitated leaving out a number of nuances. Specifically, I’ve tried to give you the affirmative reasoning here and will follow-up with a second piece on how the Court shot down the arguments against gay marriage.

As I walked to City Hall from the BART station yesterday to witness this marvelous moment, the first sign I saw was a large yelIow one that read “Recriminalize Sodomy.” And I had to chuckle because these folks had clearly not read the decision.

See, the California State Supreme Court’s decision contains a Technicolor “Eff You” that beats any chant or hiss I could muster. Not only did the Court summarily reject the notion that heterosexuals would be harmed by extending to gay people the right to marry, it also made quick work of the defendants’ argument that “tradition” is somehow a rational justification for preserving heterosexual marriage.

Thanks to prior civil rights movements, court cases are rife with precedent for change in the traditional way things have been done. (Women being afforded the right to serve on juries, for example.) One chant aimed at the religious folks holding anti-gay signs on steps of City Hall could have been written by the justices themselves:

“Racist, sexist, anti-gay; fascist Christians go away!”

By way of a quick and dirty summary, the Court’s ruling says that (1) because all persons have a constitutional right to marry the person of their own choosing, and (2) homosexuals are a protected class, then (3) the right to marriage cannot be limited without a compelling state interest. And because (4) there is no evidence of harm to heterosexuals by same-sex marriage, and (5) tradition alone cannot be the basis for denying rights to a historically disfavored group, (6) there is thus no compelling state interest sufficient to justify causing harm to homosexuals by denying them the right to marriage.

I. Fundamental Right to Marry

The Court began its analysis by pointing out that the California Constitution guarantees all persons the fundamental right to marry. Which, the Court was quick to point out, is not contingent upon a finding of the same right under the U.S. Constitution. (Cal. Const., art. 1, sec. 24.)

1. Source of the Fundamental Right to Marry

Both California Courts the United States Supreme Court have held that there is a right to marry that is based in “liberty” and therefore cannot be taken away without “due process.” Additionally, both the state and U.S. Supreme Courts have held that the right to marry is an aspect of the "right to privacy." Unlike the US Constitution, which has been interpreted to include a right to privacy, the California Constitution expressly includes that right. (Cal. Const. art. 1, sec. 1.) The right to marry isn’t just any old right; it’s a fundamental right, said the Court, because our larger society (via stable families and mutual financial support) and individuals benefit from marriage. And anyway, the all parties to the case agree that the right to marry is a fundamental one.

2. The Fundamental Right to Marriage Encompasses Gay Marriage

The Court of Appeal (whose decision the Supreme Court reversed), in striking down gay marriage, characterized the Plaintiffs’ goal as a new “right to gay marriage.” The Supreme Court dismissed that argument, stating that in the Perez anti-miscegenation case, the California Supreme Court did not characterize the relief sought as “a right to interracial marriage.” (Perez v. Sharp, 31 Cal.2d 711 (1948).) In Perez, the Court recognized the fundamental nature of the right to marry and looked to the substance of that right: “to join in marriage with the person of one’s choice.”

Then, after listing cases that discuss the importance of marriage and family to a person's personal happiness, the Court concluded:

“In light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual's opportunity to live a happy, meaningful and satisfying life as a full member of society - the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation." (Emphasis in original.)

II. Equal Protection

Article 1, section 7 of the California Constitution guarantees "equal protection of the [California state] laws" to all people. In this case, the Plaintiffs argued that the current statutory scheme which recognizes “marriage” for straight couples and “domestic partnership” for gay couples treats homosexuals un-equally (yeah, I may have made that word up) – thus denying them “equal protection” under the law. The Court agreed. Here’s how the reasoning went:

The ease with which an identifiable group of people can be treated differently without violating the “equal protection” clause is basically dependent on whether that group of people are members of a “suspect class.”

According to case law, “suspect class” designation requires three things: (1) an immutable trait, that (2) bears no relationship to a person’s ability to perform or contribute to society, and is (3) associated with a stigma of inferiority and second class citizenship.

When it comes to homosexuals, the Court acknowledged that numbers (2) and (3) are not in dispute – even the Court of Appeal agreed that both requirements are met. But the Court of Appeal stopped short of a “suspect class” designation for homosexuals because it found there to be a question as to whether homosexuality is immutable.

On that issue, the Court pointed out that absolute immutability is not required for suspect classification. For example religion (by conversion) and alienage (by becoming a citizen) can be changed [note: I would add gender to the list] but we still treat them as suspect classes. Without ruling on the issue of whether homosexuality is a choice, the Court stated, “Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”

So, according to the Court, while perhaps not strictly immutable, homosexuals as a group still meet all three requirements of a “suspect class.”

III. Strict Scrutiny

Laws that (1) impinge on fundamental rights and/or (2) deny rights to a “suspect class” are subject to the legal doctrine of “strict scrutiny.” In legalese “strict scrutiny” means that the state has to prove that the law is “narrowly tailored” to further a “compelling state interest.” In layman’s terms, it means, “your law is fixin’ to be declared unconstitutional” ‘cause it’s damn near impossible to survive a strict scrutiny analysis.

Anyway, pursuant to the “strict scrutiny” standard, it was the State’s burden to demonstrate that there is a “compelling state interest” in retaining the traditional definition of marriage.

Unsurprisingly, the Court ruled that the State failed to demonstrate such a compelling interest.

Why? Because (1) simply retaining a tradition that excludes a historically disfavored minority group does not constitute a compelling state interest, (2) heterosexual marriage would not be harmed by extending the same rights to same-sex couples, and (3) denying homosexuals the right to marry causes harm to that suspect class of persons.

And because, “retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling…to justify withholding [the right to marry] from same-sex couples,” California code sections that distinguish between opposite-sex and same-sex marriage are unconstitutional. (Specifically, Cal. Family Code secs. 300 and 308.5.)

Then it directed the Defendants to pay the Plaintiffs’ court costs.


You can read more from Melissa Griffin at

Also from this author

  • Awesome!

    SUPER EGO Awesome Tapes From Africa comes to the Bay Area -- with his awesome African cassettes. Plus more global nightlife flavor this week with Kafana Balkan and D'Marc Cantu.

  • Southern light

    MOVEABLE FEAST 2014 Eating a path through southern Italy

  • Beat it

    Fall nightlife season is heating up, with Ten Walls, Tiara Sensation, Basic Soul Unit, Hercules and Love Affair, Daniel Wang, Art Beats, and more