CBJ - September 2008 #01. State Supreme Court reinforces basic freedoms.

Author:By J. Clark Kelso

California Bar Journal


CBJ - September 2008 #01.

State Supreme Court reinforces basic freedoms

California Bar Journal September 2008 State Supreme Court reinforces basic freedomsBy J. Clark KelsoANALYSIS

This was a big year for the California Supreme Court, perhaps its biggest year this decade. It would be impossible to overstate the importance of the Court's decision in In re Marriage Cases (2008) 43 Cal.4th 757, where the Court struck down California statutes that limited marriage to a union "between a man and a woman." The case is important not only because of its result and its political significance, but also because of the subsidiary legal holdings leading to the result and the style of reasoning employed in the decision.

We see in In re Marriage Cases, and in a number of other decisions this term, a supremely confident, independent high court that is not afraid to go its own way on major issues of law. "Freedom" has been a recurrent theme this year, and in each of the cases reviewed below, the California Supreme Court is out ahead of nearly all other jurisdictions in asserting some basic freedom of action and behavior.

Freedom to marry

The people of California, along with the rest of the nation, waited a long time for the decision in In re Marriage Cases (2008) 43 Cal.4th 757, where the Court held a person in California is free to marry another person of the same gender. Recall that the court first inched towards this issue four years ago in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055. Lockyer arose in response to the governmental civil disobedience that gripped the City and County of San Francisco when Mayor Gavin Newsom triggered changes in the marriage license issued by the county clerk to make those licenses gender-neutral and, therefore, available to same-sex couples.

The court's reaction in Lockyer was utterly predictable. State law clearly provided that "marriage is a personal relation arising out of a civil contract between a man and a woman" (Family Code Section 300). Other statutes require issuance of a license before persons enter into a marriage and set forth in detail the contents of that license. The duties of local officials under these statutes are ministerial. The only justification offered by the city for ignoring these statutory requirements was its contention that these statutes were unconstitutional and that the county clerk had the authority to make that determination and alter the license application form to make it constitutional.

The issue in Lockyer was not the constitutionality of the underlying statutes. Instead, the issue was whether a local official who has been charged with performing a ministerial duty pursuant to a state statute may disregard that duty because the official believes the provision is unconstitutional, notwithstanding the absence of a judicial determination that the statute is unconstitutional. In short, can the county clerk declare a statute to be unconstitutional and act upon that declaration?

In a lengthy and comprehensive opinion, with clear connections to separation of powers doctrines, the court essentially held that county clerks have not been granted the judicial power to pass upon the constitutionality of statutes that impose upon the county clerk ministerial duties. If the county clerk thought the...

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