Courting marriage equality
by Julie A. Nice
What a roller coaster the courtship of marriage equality has been. The first wave of lawsuits challenging the ban on same-sex marriage in the 1970s met with little fanfare and even less success. A second wave of lawsuits over the last 15 years has had varying success as same-sex couples ask state courts to enforce two fundamental principles underlying all state constitutions. First, the government may not interfere with individual liberty by denying fundamental rights, including the right to marry. Second, the government may not interfere with equal protection of the law by discriminating against unpopular or minority groups, including gays. In short, state constitutional protections of liberty and equality prohibit the government from denying marriage equality to same-sex couples.
The California Supreme Court recently enforced this state's constitutional commitments of equality and liberty by invalidating the ban on same-sex marriage. The court ruled that the state constitution requires the government to accord same-sex families the equal freedom, dignity, respect, and security of civil marriage. Supporters celebrated in jubilation as pioneers Phyllis Lyon and Del Martin culminated their enduring courtship of more than 50 years to become the first of approximately 18,000 same-sex couples to legally marry in California. But on November 4 voters approved Proposition 8, seeking to add to the state constitution: "only marriage between a man and a woman is valid or recognized in California." Because laws generally take effect only prospectively, and not retroactively, most legal scholars agree that Prop 8 only restricts the state going forward from recognizing new same-sex marriages. California nonetheless has earned the dubious distinction of becoming the first state – and thus far only state – to strip a constitutionally recognized civil right to marry from same-sex couples.
As the old saying goes, even a dog knows the difference between being tripped over and being kicked. The Prop 8 kick brought the gay and civil rights communities to their feet. Persistent protests in California have inspired hundreds of rallies nationwide. Tens of thousands of marchers are sending the message that stripping rights violates our fundamental constitutional principles.
Be assured that the courts are among those taking notice. One thing constitutional scholars know about the courts is that they don't decide cases in a vacuum, but are deeply committed to their role as guardians of constitutional commitments within the context of society as we know it. In other words, the regular job of the courts is to decide what protections are necessary for individual liberty and equality to have meaning in today's time. That's what the United States Supreme Court did in 1992 when it ruled that the federal constitution prohibited Colorado from amending the state constitution to deny gays protection from discrimination because doing so would "deem a class of persons a stranger to its laws." And it's what the United States Supreme Court did in 2003 when it ruled that Texas could not criminalize the private sexual conduct of gays because doing so would "demean their existence." But these federal decisions do not directly require the invalidation of Prop 8, in part because the challenge to Prop 8 is based only on the state constitution. And most likely the challengers don't think it's time for same-sex marriage to end up in the United States Supreme Court – at least not yet. As was the case with other civil rights movements, including the struggle to dismantle the ban on sodomy, protection of same-sex marriage will have to be earned one state at a time.
This brings us to California's somewhat unique constitution. California's constitution permits the use of direct democracy to allow voters to "amend" the state constitution by initiative. Before voters can "revise" the constitution, approval by either two-thirds of each house of the state legislature or a constitutional convention is required. So what's the difference between "amending" and "revising" the state constitution? A revision changes some fundamental principle of the constitutional scheme or makes some far-reaching change in the basic governmental plan.
Prop 8 challengers argue that protections of individual liberty and equality are fundamental state constitutional principles. Prop 8 violates these fundamental principles by stripping protection of the right to marry only from same-sex couples. Prop 8 challengers also argue it is a far-reaching change of our governmental framework when voters strip the courts of their ability to decide the meaning of the state constitution. Just as Prop 115 was ruled to be a revision when it attempted to strip the courts of the ability to enforce state constitutional protections as applied to criminal defendants, Prop 8 similarly attempts to strip the courts of the ability to enforce state constitutional protections as applied to same-sex couples.
Allowing a bare majority to use the constitution to strip recognized constitutional rights would not only be unprecedented, it also would violate both the fundamental principles and the basic framework of the state constitution. To put it simply, denying same-sex marriage is something the voters can no longer do alone.
Professor Julie A. Nice teaches constitutional law at the University of San Francisco School of Law.