Archive for May, 2008

Cal Supreme Court: State law on marriage unconstitutional

Thursday, May 15th, 2008

By a 4-3 vote the California Supreme Court has struck down that state statute that limits marriage to opposite sex couples.

The combined opinions run about 200 pages, so it will take a while to digest.  But the decision is based on the state constitution, and the court rules that sexual orientation is a suspect classification under the state’s equal protection guaranty.

Early Cases – “Privileges and Immunities”

Thursday, May 15th, 2008

State equal protection jurisprudence will differ from federal when the states take into account the difference in text.  The state charters, when originally adopted, did not contain an express “equal protection” clause (note – the California Constitution was amended to add such a clause).  Instead, the state constitutions prohibited “special laws” or, more commonly, prohibited the enactment of legislation granting “privileges or immunities” not available to all citizens equally.

Examples of state court decisions involving a privileges or immunities clause on the gay marriage issue include:

Morrison v. Sadler, 821 N.E. 2d 15 (2005) — Indiana Court of Appeals decision upholding state’s Defense of Marriage Act against a “equal privileges or immunities challenge.”  Standard of review grants substantial deference to legislative classification and does not apply differing levels of scrutiny.

Standhardt v. Superior Court, 77 P.3d 451 (2004) — Arizona Court of Appeals decision upholding state statute against “privileges or immunities” challenge.  The court treated the privileges or immunities clause in the state constitution as merely a state counterpart to the Equal Protection Clause of the 14th Amendment.

Andersen v. King County, 138 P.3d 963 (2006) — Fractured decision of Washington Supreme Court upholding state’s Defense of Marriage Act against a privileges or immunities challenge.  The court notes a two-tiered analysis — a higher scrutiny if the “law is a grant of positive favoritism to a minority class.”  In all other cases, the court applies a standard federal equal protection analysis.

Early Cases Massachusetts

Thursday, May 15th, 2008

In Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003), the Supreme Judicial Court of Massachusetts ruled that the ban on same-sex marriages did not survive rational relationship review under the state constitution’s equal protection guarantee.

Unlike the Vermont decision, there is no historical analysis of the constitution — instead, the court relies on a common law approach of building on prior decisions that tested legislation against the equal protection guaranty.  The Massachusetts equal protection guaranty was adopted as an “equal rights amendment” and is very specific, identifying the protected classes: 

Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

The majority opinion, however, did not rely explicitly on this clause.  Instead, it ruled:

The individual liberty and equality safeguards of the Massachusetts Constitution protect both “freedom from”unwarranted government intrusion into protected spheres of life and “freedom to” partake in benefits created by the State for the common good.

More Early Decisions on Gay Marriage Cases – Vermont

Wednesday, May 14th, 2008

The first real break-through case for those arguing in favor of same-sex marriage was Baker v. State, 744 A.2d 864 (1999).  There, the Vermont Supreme Court decided that the “common benefits” clause of the Vermont Constitution required the state to offer same sex couples the same “statutory benefits, protections, and security” available to married couples.  The court did not require the state to actually grant marriage licenses, however.

The point of interest in this case is the historical analysis of the “common benefits” clause.  The court notes that it was not intended to serve the same purpose as the Equal Protection Clause of the Fourteenth Amendment, and thus required a different analysis.

The Common Benefits Clause of the Vermont Constitution provides:

That government is, or ought to be, instituted for the common benefit, protection, security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.

This provision dates from the original 1777 state constitution and stands as an obvious statement against monarchy and class privilege.  From this provision, the court derives a principal of inclusion and that statutory classifications that exclude groups from public benefits “must be ‘premsied on an appropriate and overriding public interest.'”  Id. at 873

Gay Marriage Cases in State Courts — Earlier Decisions

Wednesday, May 14th, 2008

For those wanting to compare the analysis in the forthcoming California Supreme Court decision with the approach taken by other state high courts, the following are some of the decisions from those courts on this issue:

Baker v. Nelson, 191 NW 2d 185 (1971) — The Minnesota Supreme Court rejected a federal constitutional challenge to the state law that did not authorize marriage between same-sex couples.

Baehr v. Lewin, 852 P.2d 44 (1993) — The Hawai’i Supreme Court that although same-sex marriage was not a “fundamental right” under the Hawai’i Constitution, a statute that precluded same-sex marriage was a classification based on sex that warranted strict scrutiny.

Dean v. District of Columbia, 653 A.2d 307 (1995) — The District of Columbia Court of Appeals rejected a federal constitutional challenge to statute prohibiting the issuance of marriage licenses to same-sex couples.

Decision in Gay Marriage Cases Due Thursday at 10:00am

Wednesday, May 14th, 2008

The California Supreme Court has announced that it will issue its decision in In re Marriage Casesat 10:00 am on Thursday, May 15, 2008.  Whatever the ultimate result in the case, this should prove to be a significant addition to the state’s jurisprudence on that Equal Protection guaranty in the California Constitution.

As soon as the decision is announced, I will post comments on the decision with an eye toward what it might mean for future Equal Protection challenges in different contexts (I will leave the social commentary to others).  In the meantime, I will post information on how other states have ruled on the same issue.