California In re Marriage

What's this? An actual post about LAW! Imagine that.

As many of you know, the California supreme court this week ruled that same-sex marriage bans are unconstitutional (vis a vis the state constitution).

I think this finds great precedent in precedent at the Federal level too.

1. Loving v Virginia established marriage as a fundamental right under substantive due process (applied to the states through the 14th amendment)
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2. Justice Steven's dissent in Bowers v Hardwick, as cited, and adopted, in the majority of Lawrence v Texas states that: "Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice".

3. A restriction on a fundamental right can only be upheld after passing strict scrutiny. The burden on the state is to prove there is a compelling interest/reason to regulate and that the regulation is narrowly tailored to fit the compelling interest.

Because Loving established marriage as a fundamental right, and morality alone cannot be the basis for a compelling interest (the California court essentially did not find even a reasonable reason for the discrimination), it follows that a state cannot infringe the right to marry of individuals within it's territory.

However, as the California court points out, homosexuals have not historically been a protected class on any level. I do not think this is terribly relevant, because marriage is a fundamental right, so the protection stems from that, not the individuals classifications as homosexuals. The California court also points out that the couples may not have a right to have their relationships actually called 'marriages'. So a lot could still be negatively done by tweaking the definitions of marriage, but still at it's core I think that California got it right.

Were a case like this to reach the Supreme Court, I think that, aside from Scalia and Thomas' (and probably Alito and Robert's) desire to ask "does our constitution protect homosexuals seeking to marry", the statute in question could be rulled unconstitutional.

-Side note: the only reason there is a conservative - liberal split on substantive due process is the way the right in question is framed. i.e. Scalia in Lawerence "does the constitution contain a fundamental right to engage in sodomy"; the majority in the same case "does the constitution contain a fundamental right of privacy in the bedroom for consenting adults". For me the 9th amendment signals the latter, broader, interpretation should be controlling. If the concept is kept broad, you are not asking judges to use their own subjectivity to decide if sodomy is a protected right, but simply asking them to decide if privacy in the bedroom is one, and surely if I have the right to be free from unreasonable searches and seizures in my home then privacy in the bedroom is a right too. So I suppose this makes me a 'living constitutional-ist'.