The California Supreme Court has announced that at 10:00 a.m. tomorrow, it will publish its decision in the Marriage Cases. May 15, 2008, could be a very significant date in California's legal history. May 15 is already a significant date as far as marriage goes for me -- The Wife and I were married on May 15, 2004. I think it would be delightful if our gay friends could get married on the same day so we could share the anniversary date. If that's what they want to do.
The question to be answered by the Court will be:
Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?
The applicable clauses of the California State Constitution are:
Article I, Section 1: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Article I, Section 2(a): Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Article I, Section 7(a): A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation.
Note also Article I, Section 24: Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.
The question that apparently will not be answered by the Court will be:
How is registration under California's domestic partnership law different than marriage for purposes of California state law?
As I've written several times before, it seems to me that the domestic partnership law is, to the extent that the State of California possesses the power to make it so, marriage by another name. The State of California is powerless to affect the Federal rights, entitlements, and benefits given to married couples and tomorrow's decision therefore can affect no Federal rights. So the state's statutory ban on same-sex marriages can potentially be justified, I think, by reference to the sweeping scope of the domestic partnership law, and the burden rightly falls on the challenges of the marriage restriction to explain how that law provides them with second-tier rights by the State.
We shall see tomorrow!