The California Decision

The California Supreme Court decision is so amazing I couldn’t resist sharing at least a little of it.

From a constitutional lawyer’s standpoint, this decision is just about everything we could have hoped for. The Court rules-in general-that sexual orientation is not a legitimate reason to treat gay people differently. In lawyer’s jargon, the court held that sexual orientation is a “suspect” classification, just like gender and race classifications.

The Court also holds that even though history is important in deciding what a fundamental constitutional right is, courts should not respect traditional restrictions on who got to exercise the right in the past.

The Court puts these rulings together and says that since the right to marry is fundamental, denying it to any group of people is highly suspect. Moreover, the Court says, since the law denies gay people the right to marry, this particular exclusion is highly suspect.

The Court then rejects the state’s attempts to justify the exclusion, saying that tradition is not an important enough purpose. In a wonderful passage, the Court points out that excluding gay people from marriage is hardly necessary to preserve heterosexual marriage, since allowing same-sex couples to marry takes nothing away from anyone else. Amen.

Three things really set this opinion apart. (You can read it here.)

First, the Court’s constitutional reasoning is absolutely first rate.

Second, the Court’s writing is clear and accessible.

Finally, the Court realized it was writing not just for lawyers and other courts, but for the people and for history. I know I will never forget the moment when I read this passage near the start of the Court’s opinion:

Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.

I went in to see Steve Shapiro, the ACLU’s Legal Director, and I tried to read this to him. I fell apart. This, legally, politically and socially, is what we’ve been working to convince Americans of from the start of the LGBT rights movement.

This may not be the end of our battle. But this is a landmark.