Kate ([info]kate_nepveu) wrote,
@ 2008-05-15 21:32:00
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Entry tags:law, writing

California Same-Sex Marriage Decision

As everyone has said, California's highest court today ruled that "the designation of marriage" must be made "available both to opposite-sex and same-sex couples." I am so happy about this, though my happiness must pale besides that of those more directly affected by the decision.

That decision, by the way, is 172 pages: 121 pages of majority opinion (including 73 footnotes), 40 pages of concurring and dissenting opinions, and 11 pages of administrative stuff (PDF, 500KB). I've only had time to skim the majority opinion (and I am, alas, not the sharpest knife in the drawer at the moment thanks to sleep deprivation), but the only word that comes to mind is "exhaustive." Which—to go off on a tangent—interests me, because there are several different potential audiences for all this exhaustive discourse, and talking to multiple audiences is a tough thing to do.

One potential audience is the U.S. Supreme Court. No, it can't directly review this decision, because it's based solely in the California constitution. However, if California's constitution is amended this November to overturn this decision [*], the permissibility of that amendment under the federal constitution might be challenged, as Colorado's Amendment 2 was challenged in Romer v. Evans. In which case the very scholarly, thorough, legally-oriented exhaustiveness of the decision might be aimed at the U.S. Supreme Court (though the idea of the current U.S. Supreme Court considering this question absolutely makes me shudder).

[*] I still can't really believe that California allows amendment of its Constitution by majority vote.

Another potential audience is other state courts, and a footnote indicates that a similar case is pending in Connecticut. However, much of its California-specific exhaustiveness doesn't seem relevant to providing a persuasive model for other states.

That exhaustiveness does seem relevant to, well, California, though; and considering the Court's certain knowledge that voters will pass judgment on its decision in November, I think the Court must've had the California public in mind as another intended audience. But I don't know how effective the decision is as a persuasive argument for this audience—the first twelve pages are a summary, but their tone and accessibility strike me as considerably different from the opening of the equivalent Massachusetts decision.

Have any of the non-lawyers here ventured into the decision itself? What did you think?



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[info]oyceter
2008-05-16 01:39 am UTC (link)
I started reading it and found it more accessible than I had thought it would be. The language actually felt very casual and understandable to me, without much jargon, though the footnotes and cases cited were a little daunting. That said, I didn't make it past a few pages, but that's largely because I am sleep deprived and not doing so well with concentrating...

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[info]kate_nepveu
2008-05-16 07:40 pm UTC (link)
Heh--I went back and added a sleep-dep disclaimer. There are some interesting aspects of the context as opposed to the presentation, and I hoped to talk about some of them, but just the above took me so frighteningly long to write . . .

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[info]ckd
2008-05-16 02:13 am UTC (link)
I'm still reading it; I'll let you know what I think in about another 150 pages. I am, at best, an informed layman (two semesters of undergraduate Business Law courses doth not a lawyer make), but I've previously delved into related decisions[1] during various online debates.

[1] Goodridge, of course, but also both Loving v. Virginia and Perez v. Sharp for their parallels, as well as the Washington State decision in Andersen v. King County.

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[info]mmcirvin
2008-05-16 02:23 am UTC (link)
The only one of these things I ever actually read all the way through was Kitzmiller v. Dover. That one was a terrific read; you could sense the judge's mounting indignation at the stupidity of the whole pageant.

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[info]missysedai
2008-05-16 02:28 am UTC (link)
It's on my To-Do list for tomorrow, as one of my employers is an attorney who expects me to read the big decisions in advance of our forum getting plowed under with questions.

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[info]ckd
2008-05-16 04:00 am UTC (link)
Notes on the decision:

They utterly demolish the "but you gotta be able to pop out kids yourselves!" argument in pp. 72-78.

Fn. 51 slaps (but in fine legal language) the ACLJ (not U, but they'd love to confuse you)'s amicus brief for cherry-picking quotes.

Fn. 52 pushes aside the question of multiple marriage, in the now-usual "throw them under the bus" move to avoid "slippery slope" arguments. (I'll note that the Organization of the Islamic Conference fought UN benefits for same-sex partners even though the UN also allowed benefits to multiple spouses, as allowed by the laws of some of the very same countries....)

They have an interesting "it's not sex discrimination" argument in pp. 85-93 which I'm not yet sure I totally buy, but which is pretty convincing even though I've historically had the opposite view.

p. 95: "In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation." Compare to Dan Savage's marriage license story: "I can get a meaningless one anytime I like, just so long as I bring along a woman I don't love and my $54."

I've previously argued against the "but it's a choice, so we should be able to discriminate" position with "religion is far more clearly a choice, yet discrimination based on religion is widely prohibited"; p. 97-98 takes a similar position.

They counter the "gays have money, so they can't be discriminated against!" argument that was so badly used in the Andersen decision in pp. 98-100.

On the "must it be called marriage" issue I enjoy fn. 66's take on the naming argument; funny but serious at the same time. The "outing" argument on pp. 105-106 is one that I hadn't previously heard and which IMO significantly strengthens the case. (They also take on the naming question in passing in pp. 117-118.)

I like their takedown of "it's always been this way" in pp. 110-111 and 114-116.

After reading the dissents, I'm really unhappy with fn. 73, rather than just kinda-sorta unhappy as I was when I first read it. I do think there's animus involved, and while the majority was presumably trying to set the issue aside so as to keep Romer out of it, I think fn. 73 gives too much ammunition to the dissenters.

Kennard's concurrence and discussion of Lockyer is great, and I wish her opinion in that case had been included in the ruling so that the 2004 marriages would have been set aside pending this decision, rather than immediately invalidated. She's also very eloquent about the need for judicial protection for unpopular minorities.

Baxter's concurrence/dissent? He needs to read (or re-read) Kennard's concurrence (and then Perez). I do agree with the basic idea that multiple marriage shouldn't be considered out of bounds relative to same-sex marriage; I don't agree with his "OH NOES FIRST TEH GAY THEN TEH GROUPS" approach (which I'd call "throwing both of them under the bus"). I also disagree with his use of the Andersen argument against gays being a protected class.

In the administrivia, on the last page: "Counsel who argued in Supreme Court (not intended for publication with opinion)". Oops!

[Edits: minor typos I missed in preview.]

Edited at 2008-05-16 04:14 am UTC

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[info]kate_nepveu
2008-05-16 11:03 am UTC (link)
More later, but--"publication" is almost certainly a legal term of art meaning, put in the official printed bound volumes.

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[info]ckd
2008-05-16 01:03 pm UTC (link)
That makes sense. Thanks for the clarification!

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[info]mmcirvin
2008-05-16 11:51 am UTC (link)
My favored argument against "gays have the same right as everyone else: to marry someone of the opposite sex" is to turn it right around. I think it's sex discrimination if straight people are restricted to marrying someone of the opposite sex! When I got married (in Massachusetts but pre-Goodridge), the state required me to only marry a woman. As it happened, I wanted to marry a woman, but I want the state to respect my sexual orientation sufficiently to let me make that call instead of telling me. Granted, this is of little practical effect, but it makes the point that same-sex marriage isn't a "special right for gays", which it's often criticized as being.

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[info]mmcirvin
2008-05-16 12:54 pm UTC (link)
...However, I see that the relevant section of the decision argues in some detail that case law in California does not agree with me, and instead would classify the marriage restriction as discrimination by sexual orientation.

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[info]kate_nepveu
2008-05-16 07:49 pm UTC (link)
My recollection is that the attempt to invoke sex discrimination is an effort at bumping up the level of scrutiny applied (strict v. rational basis, until now).

On a conceptual level, as opposed to a strategic, I am inclined to agree with the California court that it makes more sense to analyze prohibiting same-sex marriage as discrimination based on sexual orientation rather than sex.

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[info]laurelt
2008-05-16 08:45 pm UTC (link)
It does in the sense that it really is meant at preventing GAY marriage (rather than caring whether two straight women enter a chaste legal bond), but on the face it draws a sex-based distinction. That was what the Hawaii marriage case, Baehr v. Lewin, turned on.

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[info]kate_nepveu
2008-05-16 01:58 pm UTC (link)
Heh: my reaction is similar to Dalia Lithwick's:

The justices start off on the defensive and somehow get more defensive from there. Whether this makes for quality opinion writing is yours to decide.

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[info]chomiji
2008-05-16 02:16 pm UTC (link)

I did take a quick look at it. I first discovered that cases could be interesting reading when formatting and posting some of the things for our agency web site, and then the documents available for the Gaiman vs. MacFarlane case reinforced that (example). I liked the emphasis on things such as the inalienable right of all people to form a loving family, and the fact that allowing such right to gay people can't possibly be construed as denying rights to het couples.

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[info]markerikson
2008-05-16 04:59 pm UTC (link)
If this is a serious step in the direction of making same sex marriage widely...well, legal if not accepted, then it's badass.

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