Gay marriage by judicial activism
Gay marriage by judicial activism
by Chris Crain - SGN Contributing Writer The euphoria still lingers after the California Supreme Court decided that limiting marriage to heterosexual couples violates the state's constitution. Gay and Lesbian couples from across the country are already making wedding plans in the Golden State, which - unlike Massachusetts - has no residency requirement for marriage.

That excitement isn't shared by everyone, of course. Conservatives have attacked the ruling since it was announced, complaining that a bare majority of the California Supreme Court had exceeded its authority and legislated from the bench, deciding for itself that same-sex couples ought to be able to marry, rather than leaving it to the Legislature.

Republican presidential candidate John McCain was among the critics, affirming through a spokesman that he "supports the right of the people of California to recognize marriage is a unique institution sanctioning the union between a man and a woman.

"John McCain doesn't believe judges should be making these decisions," the spokesman said.

The California court rightly rejected this simplistic charge of "judicial activism," noting that state and federal constitutions were themselves adopted by "the people" in part to limit the power of "the people" to trample individual rights. Unfortunately, even though the court was perfectly within its authority to rule on the constitutionality of the marriage laws, the four justices in the majority arguably overstepped their authority in several important and completely unnecessary ways.

Perhaps most surprising about the marriage decision was how swiftly it will be implemented. Having concluded the existing law is unconstitutional, the court ordered county clerks to begin issuing marriage licenses to same-sex couples almost immediately, 30 days from the effective date of the decision.

When the state supreme courts in Vermont, Massachusetts and New Jersey earlier concluded that their heterosexual-only marriage laws violated the rights of Gay couples, they left it up to their respective legislatures to pick what form of recognition should replace it.

Vermont and New Jersey chose civil unions; Massachusetts chose marriage, although only after the high court later made clear that no other alternative would do

The California court, on the other hand, took that crucial question from the Legislature and decided on its own to open up marriage to both Gay and straight couples. The majority did so despite acknowledging two times in the opinion by Chief Justice Ronald George that "marriage for everyone" wasn't the only possible solution to this constitutional problem. The other option would to put in place the same institution for straight and Gay couples alike, but call it something else: domestic partnerships, civil unions, civil partnerships or whatever.

Maybe "civil unions" or "domestic partnerships" for Gay and straight alike wouldn't fly politically, but maybe the legislative debate itself might have reconciled more Californians to the idea that marriage for everyone makes the most sense. Instead, these four justices robbed the public of that debate, as well as the democratic freedom of selecting which constitutionally acceptable form of legal recognition they wanted.

Even on the constitutional question where conservatives have focused their rage, the court took the unusual step of relying on not one but three independent reasons for striking down California's separate forms of recognition - marriage for straight couples and domestic partnership for Gay couples:

1. Banning Gays from marrying violates their fundamental right to marry (right to privacy).

2. There's no compelling reason for the way these separate forms of legal recognition infringe upon Gay Californians' fundamental right to marry (equal protection).

3. There's no compelling justification for how these separate institutions discriminate on the basis of sexual orientation (equal protection).

Any one of these three constitutional deficiencies would have been enough for the court to reach the same result.

Relying solely on the first would have been least controversial because it avoided the plaintiffs' equal protection claims, thereby bypassed the hugely controversial question of whether sexual orientation should be treated by courts like race and gender. These "suspect classifications" in the law are subject to "strict scrutiny" by the courts, and the government must bear a heavy burden to defend the challenged statute.

Even after the concluding the marriage law violates the right to privacy, the court majority kept going, becoming the first state supreme court in the country to decide that sexual orientation should be a "suspect class" like race or gender. That's a huge victory for Gay rights, and one that's fully justified in my view, but it shouldn't have come now, not in this case.

Winning is always good, but the way you win is also important. The California court could have ruled in favor of the Gay marriage plaintiffs in ways that were less activist and therefore less likely to be reversed by a ballot measure. A narrower victory might also have had more influence with other state supreme courts wary about charges of judicial activism and being overturned by voters.

Chris Crain is former editor of the Washington Blade and five other Gay publications and now edits He can be reached via his blog at