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Same-Sex Marriage Decision: Not Activism

The Recorder

Commentary by Jon B. Eisenberg — Reprinted with permission from the author.

March 21, 2008

On March 4, the California Supreme Court heard oral arguments in In re Marriage Cases, which challenge the constitutionality of California's laws restricting marriage to heterosexual couples. The oral argument — all three hours and 40 minutes of it — reminded me of that old saw about professional basketball games: Give each team 100 points and then have them play for two minutes, because everything happens at the end of the game.

The very last question from the bench, from Justice Ming Chin, was this: "Why shouldn't we leave this to the people to decide?" Several other members of the court had explored this point throughout the morning:

• Justice Carol Corrigan: "Who decides where we are as Californians?" "Is it for this court to decide, or is it for the people of California to decide?" "Who gets to decide when we get there?" "It took us about a hundred years" to achieve racial equality, "but we finally got there."
• Justice Kathryn Werdegar: "Why is this the moment of truth, as opposed to 10 years from now, after more evolution may have occurred?" "What is our role?"
• Justice Marvin Baxter: "The Legislature has stepped up to the plate" with the Domestic Partnership Act.
• Justice Joyce Kennard: "Is deference to the Legislature legitimate for purposes of equal protection analysis?"
• Chief Justice Ronald George: The California Supreme Court "has the authority and responsibility" to decide the constitutionality of the marriage restriction.

What we were seeing from the bench was a classic jurisprudential debate between the justices — conducted in the form of questions to counsel — about so-called "judicial activism." Justice Chin summed it up in the last two minutes of the game: "Why shouldn't we leave this to the people to decide?" The attorney to whom he directed this question — Shannon Minter of the National Center for Lesbian Rights — gave the right answer: "Because this case poses a constitutional question that's within this court's authority and responsibility to decide."

Let's ruminate on this.

Before 1977, the California statute defining marriage stated: "Marriage is a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary." The law did not expressly bar marriage by same-sex couples until 1977, when the Legislature added the phrase "between a man and a woman" after "civil contract." Then, in 2000, with Proposition 22, the people adopted Family Code §308.5, which creates an exception to California's law requiring that valid out-of-state marriages be honored within California, stating: "Only marriage between a man and a woman is valid or recognized in California."

In 2004, San Francisco Mayor Gavin Newsom, having concluded that denying same-sex couples an equal right to marry violates the California Constitution, directed San Francisco officials to issue marriage licenses without regard to gender or sexual orientation. The California Supreme Court put a halt to the ensuing marriages — some 4,000 in a month's time — ruling unanimously in Lockyer v. City and County of San Francisco, 33 Cal.4th 1055 (2004), that local executive officers like Newsom lack authority to determine whether a law is unconstitutional.

Rather, said Lockyer, an appropriate procedure "to ensure that the constitutionality of the current marriage statutes would be decided by a court" is "a lawsuit brought by a [same-sex] couple who has been denied a license under existing statutes." This pronouncement was immediately followed by a handful of such lawsuits on behalf of numerous same-sex couples, consolidated as the Marriage Cases.

And so it came to pass that the constitutional question was properly put to the California Supreme Court: Do California's marriage laws violate the state's constitutional guarantees of equal protection and individual liberty?

Some of the Supreme Court justices, by the tone of their questions from the bench, seem to feel that, despite what Lockyer said, the legal question whether gay and lesbian couples have an equal constitutional right to marry is not a matter for the courts to decide, but rather for the people through the Legislature or the initiative process. The unspoken phrase was judicial activism. And the underlying inquiries were clear: Isn't the question of who can marry a matter of public policy? Aren't the courts being activist when they intervene in such matters despite a vote of the people? Given that the governor vetoed the Legislature's recent efforts to change the marriage laws, shouldn't the matter remain in the political arena? If the people have spoken through the initiative process, shouldn't the exclusive means of overturning that initiative be another initiative? Shouldn't the courts defer to elected representatives and the people?

Given the role of the courts in deciding constitutional issues, the answer to these questions is clearly no. The Marriage Cases pose the issue of whether California's marriage statutes violate constitutional guarantees. Since Marbury v. Madison, 5 U.S. 137 (1803), it has been well settled that such constitutional issues are decided by the courts — not by legislatures, not by presidents, not by governors, not by mayors and not by initiatives.

To answer one of Justice Werdegar's questions: "Why is this the moment of truth?" This is the moment of truth because the constitutional question has been put to you. And to answer another of Justice Werdegar's questions: "What is our role?" Your role is to decide that constitutional question.

That was the role of the United States Supreme Court in 1954 in Brown v. Board of Education, 347 U.S. 483 (1954) — to decide the constitutional question, put to the courts by African-American children, whether "separate" in public education can ever be "equal." That was the role of the California Supreme Court in 1948 in Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 — to decide the constitutional question, put to the courts by an interracial couple, whether California's statutory ban on their marriage was unconstitutional. And that is the role of the California Supreme Court in 2008 in the Marriage Cases — to decide the constitutional question, put to the courts by same-sex couples, whether California's restriction of marriage to heterosexual couples is unconstitutional.

For the courts to decide such constitutional questions is not judicial activism — it is their job. And the time is now in the Marriage Cases — not 10 years from now, not a hundred years from now — because now is the time when the question has been properly put to the California Supreme Court.

Plainly, that's what Chief Justice George meant when he commented that the court "has the authority and the responsibility" (my emphasis) to decide the constitutionality of California's marriage laws. He's right. And surely that's what NCLR's Minter had in mind when echoing the chief justice's words in the closing minutes of that March 4 jurisprudential basketball game. It is your job.

Jon B. Eisenberg is an appellate attorney in Oakland with the law firm of Eisenberg and Hancock. He wrote an amicus curiae brief in the Marriage Cases on behalf of the California NAACP.