The California Supreme Court's Decision Equalizing Marriage for Gay and Straight Couples: Did the Court Overstep?

By EDWARD LAZARUS
Friday, May. 23, 2008

Whenever a court hands down a decision on a controversial issue, and in so doing overturns either a popular vote or the judgment of an elected legislature, the question arises whether the court has overstepped the proper role of a judicial body.

The California Supreme Court's recent decision in In re Marriage Cases, declaring that the right to marry must extend to same-sex couples, puts this question into sharp focus.

The Tenuous Line Between Courts' Legitimately Protecting Rights, and Illegitimately Setting Policy

On one hand, judges have a duty to enforce constitutional commands even if that means striking down laws enacted through ballot initiative or legislation. On the other hand, judges are supposed to avoid "legislating from the bench" – meaning that they are not supposed to merely substitute their own policy preferences for those of the people or their elected representatives under the guise of constitutional interpretation.

This is the fundamental jurisprudential debate that surrounds the most controversial decisions of our time. To take the most obvious example: When the U.S. Supreme Court recognized the right of women to obtain an abortion in Roe v. Wade, was it simply enforcing a woman's constitutional right to liberty protected by the Constitution? Or, was it substituting its own view of wise policy for that of the many state legislatures that had previously outlawed abortion?

To be sure, most of us come to this debate – as with the debate over school prayer, affirmative action, the death penalty, or other hot button issues – with strong biases. If we like the substantive result reached by a court, then we tend to legitimize the judicial process by which that result was reached. Conversely, when we don't like a decision, we tend to view the process as illegitimate.

But our natural tendency to view judicial decisions in terms of their outcomes should not blind us to the fact that some decisions really are more "legitimate" than others – and that, in a democracy, the legitimacy of judicial decisions that override the will of the people really does matter.

Why the Majority's Reasoning is More Powerful Than the Dissenters': The Dissenters Ignore an Important Different Between the U.S. and California Constitutions

In the view of the California Supreme Court majority in the gay marriage case, the California Constitution mandates the equal treatment of same-sex and opposite-sex couples with respect to the right to marry – and to rule otherwise would be to slight the Court's responsibility to enforce the state's constitution regardless of the popular will.

In the dissenters' view, however, the majority has improperly substituted its moral judgment for that of the people of California, who have traditionally limited the right to marry to unions between a man and a woman.

In my view, the majority has the better of this argument -- for a somewhat ironic reason. The dissenting justices, even though they are state judges interpreting their state's constitution, failed to recognize important distinctions between the California and the U.S. constitutions, regarding amendment procedures. Accordingly, they have obscured the fact that the case for extending the right to marry to same-sex couples under the California Constitution is significantly stronger than the case for recognizing such a right under the U.S. Constitution.

The Problem with the Dissenters' Reasoning: Ignoring Contrasts Between the Federal and California Constitutions

The dissenters in the same-sex marriage ruling challenge its legitimacy by using the same two basic arguments that have been leveled against the legitimacy of federal constitutional decisions invoking the "right to privacy," such as Roe v. Wade and Lawrence v. Texas, in which the U.S. Supreme Court recognized a right to engage in consensual acts of homosexual sex.

The first of these criticisms is that the federal Constitution's due process clause (which states that persons shall not be deprived of their "liberty" without "due process of law") does not contain a substantive "right to privacy" and, at most, precludes the government from interfering with only those rights "deeply rooted in this nation's history and tradition." From this starting point, the critics argue that neither the right to abortion, nor the right to engage in gay sex, nor the right to gay marriage is deeply rooted in history and tradition – indeed, one could argue the opposite, that these rights clash with history and tradition. And, thus, the critics conclude, decisions recognizing such rights on the basis of what is known as "substantive due process" simply dress up the policy preferences of judges in constitutional garb, and illegitimately impose them upon an unwilling society.

The second criticism of such federal Supreme Court decisions is that they take controversial social issues about which reasonable people may reasonably disagree, and place them outside the realm of political debate and legislative action. Because amending the federal Constitution is so extraordinarily difficult, the "People" have no practical recourse against Court decisions interpreting the Constitution, except to advocate their eventual overruling by the Court itself.

While both of these arguments have real power in the federal context, neither is persuasive in the context of the California Constitution and the gay marriage decision.

To begin, the California Constitution contains an affirmative grant of personal rights that has no analogue in the U.S. Constitution. Article I, section 1 of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

California courts, moreover, had long recognized a "right to marry" to be a component of the state's explicit constitutional protection of the right to "privacy," not least because the right to privacy was added to the state constitution at a time when the right to marry was already thought to be subsumed within the concept of privacy.

As a result, the California Supreme Court faced a very different interpretive challenge in considering the gay marriage case than the U.S. Supreme Court had faced in cases like Roe or Lawrence. While the U.S. Supreme Court had to ask itself the threshold question whether the due process clause actually contains a substantive "right to privacy" in the first place, the California Supreme Court could skip this exceedingly difficult step because the state constitution has a separate stand-alone right to privacy set forth in its very first section.

Why the Difference Between the U.S. and California Constitutions Is Fundamental In This Context

This difference is not merely important – it goes to the very heart of the question of judicial legitimacy. On the federal level, it is very tricky for a court to strike down a law on due process grounds in the face of a long history supporting the type of law under challenge. Because the substantive component of due process is itself drawn from tradition, it is hard to use due process as a basis for constitutional innovation.

But as the California Supreme Court majority in In re the Marriage Cases properly understood, the analysis of whether, under the California Constitution, gay couples should have an equal right to marry was not similarly dependent on the lessons of history and tradition. That is because, under California's Constitution, one does not have to draw on history and tradition to create a right to privacy – it's right there in the text.

The fact that the state constitution contains this explicit protection does not end the analysis. The Court still had to assess the state's rationales for distinguishing between same-sex and opposite sex couples with respect to the right to marry. And the majority very conscientiously conducted that very assessment. But this kind of evaluation in which a court scrutinized the basis for denying one group of citizens equal access to a recognized constitutional right is commonplace in constitutional jurisprudence, and not so readily susceptible to the charge of illegitimacy. Indeed, the classic constitutional dilemma pits a claimed government interest against a claimed right, and courts would not get far if they did not carefully scrutinize the interest asserted by the government to ensure it is not makeweight.

The Fact That Power Remains Very Much in the Hands of a Popular Majority Also Distinguishes the California Supreme Court Decision From Its U.S. Supreme Court Counterparts

The In re Marriage Cases dissenters are also off-base in criticizing the decision as placing the issue of gay marriage "outside the arena of public debate." On the contrary, as my fellow FindLaw columnists Michael Dorf and Vikram Amar have both noted, the California Constitution, in sharp contrast to the U.S. Constitution, is subject to amendment through a relatively simple ballot initiative process. Thus, far from placing the issue of gay marriage outside the realm of political debate, the decision has put the issue front and center.

There are plusses and minuses to a system that allows judicial interpretations of the state constitution to be overturned through popular initiative and, more generally, to having a constitution that is subject to change so readily. It is beyond the scope of this piece to weigh these.

But whether the system is good or bad overall, it does have the virtue of diminishing concern that unelected judges may use their power to short-circuit the political processes and wrongly usurp the last word on controversial social issues. In California, it doesn't take much for the people themselves to have the final say.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

Ads by FindLaw