On May 15, 2008, the Supreme Court of California released a rather ponderous (172 pages, double spaced) decision In re MARRIAGE CASES. The decision has enough footnotes and dissenting/concurring opinions that only a recovering attorney could love it. It will doubtless inspire numerous scholarly and insightful law review articles, which this neither is nor pretends to be.
The Court declared that legislation adopted pursuant to popular referendum to the effect that "marriage" can take place only between persons of different sex violates the State Constitution. It was careful to point out that it was doing so even though the same substantive legal rights and obligations of those in heterosexual marriages inure to persons engaged in civilly recognized same-sex civil unions. The basic premise of the decision was that this fact notwithstanding, people who are married are accorded a different social status than people in civil unions, which is not permissible under the California Constitution. This decision was based on an implicit, rather than an explicit, provision in the California Constitution guaranteeing the right to "marriage;" the decision thus may have little, and perhaps nothing, to do with people neither living in nor desirous of moving to California; or then again, it might.
Legal analysts say Thursday's court ruling could have wide-ranging implications for other US states, noting the California Supreme Court's history of landmark rulings.
"The California Supreme Court's example is often emulated and it often is sort of a groundbreaker," said David Cruz, a law professor at the University of Southern California and an expert in constitutional law.
On the other hand, at least one gay rights activist hopes not.
Despite the facially rather limited extent of the decision, headlines such as California's Supreme Court declared gay couples in the nation's biggest state can marry" were rampant. It was also pointed out that efforts were already underway to amend the California Constitution to obviate the Court's decision.
I respectfully (?) dissent from the Court's decision, because it is very poorly reasoned and more than likely fraught with unintended consequences. Even though it purports to interpret only the California Constitution, it may easily be stretched to other venues, conceivably even to the United States as a whole via the due process clause of the Fourteenth Amendment. In addition, a homosexual marriage countenanced under the California Constitution as now interpreted, may well, under the full faith and credit provisions of the U.S. Constitution, be required to be recognized by states lacking an implicit constitutional provision such as that found by the California Supreme Court in the California Constitution. Would a state which fails to recognize same sex marriages be required to offer same sex divorces? I don't know. And, even if the California Constitution should be amended to obviate the decision of the Court, the rationale of the decision may retain sufficient life to have impact on both State law in general as well as Federal law.