Marriage Decision Sets Huge Precedent, But Struggle Far From Over in California

[courtesy of California Progress Report]

By Paul Hogarth

Yesterday’s decision by the California Supreme Court was historic because it set a huge precedent. Not because the Court found the ban on same-sex marriage similar to earlier bans on interracial marriage, nor because it said domestic partnerships are inherently unequal. What really mattered is that the Court ruled sexual orientation a “suspect class,” which means that all laws that discriminate on that basis must now pass strict scrutiny – a crucial step forward in the rights of LGBT people.

But same-sex couples in California still lack the federal benefits of marriage that straight people take for granted – like Social Security and immigration – because the Defense of Marriage Act (DOMA) precludes them from doing so. Marriage equality supporters must defeat a constitutional amendment in November that would repeal the Court’s ruling, but they also need a Democratic President. If DOMA gets repealed in 2009, gay couples in California will finally be equal in the eyes of the law.

After the Supreme Court heard oral arguments in March on whether the state’s marriage law is unconstitutional, most legal observers predicted that the Court would uphold the ban on same-sex marriage. If California’s Domestic Partnership Law offers many of the same legal rights as marriage, how are same-sex couples harmed by not getting married?

The Court answered this question by ruling that the term “marriage” is a necessary part of that constitutional right. By framing the right to marry within the right to have a family, families of same-sex couples must be accorded the same “dignity, respect and stature” as other families enjoy. Offering the “historic and highly respected designation of marriage” only to straight couples – while giving gay couples “the new and unfamiliar designation of domestic partnerships” presents a “serious risk” of denying them such stature.

It’s what gay marriage supporters have argued for years, and is similar to the “separate is unequal” argument made by the Massachusetts Supreme Court in 2004. But while that was a victory for California, it wasn’t the best part of yesterday’s ruling.

California’s law defining marriage as being between “a man and a woman” discriminates against gay couples – but to strike it down a court would have to rule that it violates equal protection. If a law discriminates against a “suspect class” – like race, gender, religion or national origin – it must pass “strict scrutiny.” In other words, the law is presumed to violate equal protection – unless the state can prove that it serves a compelling public interest, and is narrowly tailored through the least restrictive means toward that end.