The California Ruling and the Presidential Election

A few hours ago, the California Supreme Court ruled that the California Constitution protects the right of same-sex couples to marry. I haven't read the entire opinion yet, but it's crystal clear from what I have read that the Court relied only on the California Constitution, and not the U.S. Constitution. Because state high courts are the final authority on the meaning of state law---including state constitutional law---there is no way this case will go to the U.S. Supreme Court. The federal issues it raises involve what respect other states will owe California same-sex marriages (in light of the federal Defense of Marriage Act and the Full Faith & Credit Clause of the federal Constitution's Article IV), but those issues are not present in this case, and are no different from the ones raised by the Massachusetts ruling in Goodridge in 2003.

Apparently one can't (yet) be a serious candidate for President and say that one thinks same-sex marriage should be legal, but I'm not running for any office and so I'll say it here. Indeed, I'll go further and say that the Equal Protection Clause of the Fourteenth Amendment, best understood, forbids states from denying same-sex couples the right to marry for the same sorts of reasons that it forbids states from denying inter-racial couples the right to marry. As far as I'm concerned, the arguments advanced against same-sex marriage conflate religious and civil recognition of marriage or rely on ugly and false stereotypes of gay, lesbian and transgendered persons. The best that can be said for these arguments is that they typically are not arguments at all but stipulations: "Marriage is defined as the union of a man and woman" is no more an argument than is "marriage is defined as the union of a man and woman of the same race." It's the very definition that equality proponents challenge, and so reasserting it doesn't meet the objections.

Nonetheless, many hard-working Americans apparently disagree with me and the rest of the egghead class on this point, and that itself might be a reason for courts to go slow. Justice delayed may be justice denied, but justice rushed could be backlash accelerated. A state or U.S. Supreme Court Justice who said something like the following would be making a respectable point: "In my view, it's clear that prohibitions on same-sex marriage violate core principles of equality, but my conception of equality must be informed by the people living in the society around me, and those people are comfortable with discriminating on the basis of sexual orientation with respect to marriage." I'm not saying I would agree with such a ruling. I wouldn't. But it would be vastly preferable to an opinion actually rationalizing laws that deny the right to marry to same-sex couples. (Having skimmed the dissent in today's case, I can say that it's somewhere in between.)

But I digress. It would be more than a shame if the American people again became enflamed by this issue again, which may explain the Democratic strategy of waffling. Here's what Senator Obama said when he voted against a proposed constitutional amendment banning same-sex marriage:
I personally believe that marriage is between a man and a woman. But I also agree with most Americans, including Vice President Cheney and over 2,000 religious leaders of all different beliefs, that decisions about marriage should be left to the states as they always have been.
That was actually the same position that Senator McCain took: It's up to the states. He said:
The constitutional amendment we're debating today strikes me as antithetical in
every way to the core philosophy of Republicans. . . . It usurps from the states a fundamental authority they have always possessed and imposes a federal remedy for a problem that most states do not believe confronts them.
Let's see how long this consensus that the definition of marriage is a matter for state law lasts.

Posted by Mike Dorf