CBJ - September 2009 #02. Same-sex marriage takes center stage again in California Supreme Court term.

Author:By J. Clark Kelso

California Bar Journal


CBJ - September 2009 #02.

Same-sex marriage takes center stage again in California Supreme Court term

California Bar JournalSeptember 2009Same-sex marriage takes center stage again in California Supreme Court termBy J. Clark KelsoANALYSIS

For the third time in five years, the California Supreme Court dealt with the issue of same-sex marriage. The most recent decision - a loss for proponents of same-sex marriage - does not end the debate. More litigation is now proceeding in federal district court, and a return trip to the initiative process seems inevitable. For now, however, the voting public has won the day.

This article also reviews the legality of private-sector patdown searches before patrons can enter a stadium for a sports event and the legality of arbitration clauses that purport to define custom-made levels of judicial review of arbitration awards. In both cases, the Court appears willing to give private parties fairly broad room for managing their affairs.

The initiative wins

The People of California, along with the rest of the nation, waited a long time for the decision last year 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. The decision in In re Marriage Cases was a close call for the Court (a 4-3 vote).

There were two primary legal bases for the Court's conclusion. First, the Court examined whether the "right to marry," a right generally recognized as a fundamental constitutional right, protected a person's right to marry someone of the same gender. The answer was yes, and a key step in the analysis was the Court's decision to define and characterize "marriage" as "the right of an individual to establish a legally recognized family with the person of one's choice." Id., 43 Cal.4th at 814-15. By rejecting a more traditional definition of marriage as a union between a man and a woman, and defining marriage without reference to gender, the Court easily concluded that gender-based limits on marriage were unconstitutional.

Second, the Court examined whether the equal protection clause was violated by treating opposite-sex unions differently than same-sex unions - that is, by recognizing opposite-sex unions as official marriages, but treating same-sex unions as only same-sex unions under state statutes that had broadly extended to same-sex couples the same legal rights as opposite-sex marriages. The Court's equal protection analysis was far reaching. The majority concluded that sexual orientation is a "suspect classification" and that statutes that classify on the basis of sexual orientation are subject to "strict scrutiny." The State was unable to establish any compelling justification for denying same-sex couples official recognition as married couples.

Justice Marvin Baxter penned a strong dissent, the major thrust of which was that the majority had violated Separation of Powers by arrogating to itself the power to make a significant legislative policy judgment absent any clear constitutional directive. Justice Baxter argued, "If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means." Id., 43 Cal.4th at 861.

Other "democratic means"...

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