The cogent eloquence of last week’s California Supreme Court decision serves as a slap in the face for other jurisdictions who failed to grapple with the legal challenges in marriage equality. Since the Massachusetts Supreme Court decided Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003), New York, Washington, New Jersey, Maryland and now California have considered the issue of marriage discrimination. California’s decision to allow its citizens to marry without regard to sex reveals the ugly error of state courts that rejected challenges to marriage discrimination, most notably New York. It is now apparent that courts that rejected challenges to marriage discrimination squandered historic judicial opportunities to interpret the law’s equality guarantees in a meaningful way.
In my law and sexuality classes over the period in which these cases have been decided, students consistently note the paucity of rigorous legal reasoning among decisions that uphold marriage discrimination. Those cases relied predominantly on circular definitions of marriage as heterosexual.
Among these cases, New York’s Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), stands out from the crowd. In Hernandez, the Court of Appeals confirmed that New York was relinquishing its claim to leadership in broad array of civil rights. The same court’s 1980 holding in People v. Onofre, 51 N.Y.2d 476, served as a pioneer in the eventual sodomy law consensus that culminated with Lawrence v. Texas, 539 U.S. 558 (2003). New York was also one of the few states in the union that never enacted an anti-miscegenation law.
The New York Court of Appeals foolishly repudiated this progressive legacy when it decided to maintain marriage discrimination in Hernandez two years ago. The court, using logic that has been ridiculed roundly and deservedly, argued that for heterosexuals, children could result from “casual, even momentary intimate relationships” that required the “inducement” of marriage to promote family stability. The court distinguished same-sex couples’ families as more stable “given the intrinsic differences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.” It was truly an exercise of judicial lunacy for the court to deny marriage equality because of heterosexuality’s inherent fragility and the implicitly superior organization of same-sex couples’ families.
In her dissent, Chief Judge Judith Kaye presciently called the decision a “mishap.” After Hernandez, with former Gov. Eliot Spitzer’s support, the state Assembly attempted to rectify this error, but the Senate’s slim Republican majority killed the bill before a floor vote. Thus, New Yorkers must content themselves with out-of-state marriages, fortunately recognized in New York thanks to the Fourth Department’s recent ruling in Martinez v. County of Monroe, 2008 NY Slip Op. 00909.
The California Supreme Court provided the most eloquent rejection of Hernandez. Instead of focusing on protecting fragile heterosexual families, California argued that allowing same-sex couples to marry had no impact on heterosexual married couples or on the institution of marriage “because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.”
With regard to the standard of review, New York erred in viewing marriage discrimination as a matter meriting only rational basis scrutiny. The group New York sought to protect in its decision was heterosexuals, whose fragile relationships require the stabilizing inducement of marriage. California, in contrast, applied strict scrutiny to recognize the de jure inequality of entrenched homophobia and “the widespread disparagement that gay individuals historically have faced.” The court noted the fundamental interest same-sex couples have in seeing their family receive the “same respect and dignity enjoyed by an opposite-sex couple.”
California, like the Massachusetts Supreme Court following its ruling in Goodridge, rejected civil unions as a sufficient substitute. Allowing marriage exclusively for opposite-sex couples and “only a separate and distinct designation for same-sex couples” would perpetuate gay individuals and same-sex couples as “second-class citizens.” The impact of civil unions on New Jersey confirms California’s wisdom in rejecting this remedy. A recent study of civil unions in New Jersey, which was the state Legislature’s response to its Supreme Court, confirmed that civil unions create a second-class status. The panel found that civil unions have “a deleterious effect” on gay and lesbian youngsters and those being raised by same-sex couples. It cited a parent who referenced gay couples she knew while speaking with her gay 17-year-old son about discrimination: “And he said, ‘[b]ut they’re not married’ . . . I suddenly got it that my son is acutely aware that he’s a second-class citizen.”
For New Yorkers and those in other states whose supreme courts rejected challenges to marriage discrimination, it is sad, and indeed embarrassing, that we cannot rely on our bench to guarantee civil rights. Recent polls indicate that a majority of New Yorkers support ending marriage discrimination and allowing lesbian and gay couples to marry, and the slim Republican majority in the state Senate is the only roadblock. We New Yorkers must redouble our efforts to establish the right to marry without regard to sex.
California’s citizens cannot take its reliable bench for granted. Sixty years ago, in Perez v. Sharp, (1948) 32 Cal.2d 711, California overturned its own anti-miscegenation law, presaging the U.S. Supreme Court’s ruling in Loving v. Virginia, 388 U.S. 1 (1967), nearly 20 years later. At the time Perez was decided, the vast majority of people opposed interracial marriage. California’s stand on marriage discrimination continues this proud tradition of protecting rights regardless of popularity. The California Supreme Court decision came down 10 days after the death of Mildred Loving, the surviving plaintiff in Loving. California’s high court gave life to her ardent desire for the elimination of marriage discrimination. Now that the state’s Supreme Court has ended marriage discrimination, Californians must reject a referendum that would overrule the court’s wisdom and eviscerate the state’s principles of equality.
Darren Rosenblum is an associate professor of law at Pace Law School. The Recorder will run another perspective on the same-sex marriage ruling in next week’s Ad Hominem section.
