In a major victory for equal marriage, the Supreme Court of California ruled Thursday, May 16 that same-sex couples in California have a constitutional right to marry.
I find this ruling remarkable for four reasons:
- It takes effect 30 days from the date of ruling. In the 2004 Goodridge decision, the Massachusetts state legislature was given 6 months to comply, which gave Mitt Romney and his minions plenty of time to attempt to derail it. Although there's already talk of voter initiatives to amend the California Constitution to prohibit same-sex marriage, once gay couples begin receiving licenses, I think it will be much more difficult to pass said initiatives. Voters have an easier time denying a theoretical right to gay people than actually taking away their nice gay neighbors' marriage license. In Massachusetts, it was clear that once gay people started getting married and Western Civilization didn't collapse, opposition to gay marriage dwindled to a few die-hards.
- California does not have a residency requirement for marriage, nor a statute like Massachusetts that forbids marrying out-of-state couples whose marriages would be considered null and void in their home state. This means that gay couples all over the nation could openly come to California and get married.
- Massachusetts is no longer exceptional. Therefore, equal marriage now has a stronger case. Since 2006, several states (New York, Washington, Oregon, New Jersey, Connecticut) have continued to deny access to marriage to same-sex couples, preferring to institute civil unions instead.
- The California court set a national judicial precedent in declaring sexual orientation a suspect class demanding strict scrutiny in claims of equal protection violations. This heightened level of scrutiny makes it much more likely for discriminatory laws to be struck down as a result of judicial review (because the state must demonstrate both a compelling interest is at stake and that the law is necessary--and narrowly tailored--to support that interest). Until now, sexual orientation discrimination claims have been subjected to a rational basis review, whereby a discriminatory law is upheld as long as the state can demonstrate a rational basis exists for it.