Just a disclaimer up front. This post will probably be a bit longer than most BT posts. It involves a controversial topic. It generates lots of discussion by people with strongly held opinions on all sides. The appellate opinion itself is 128 pages long, with the majority and concurring opinions taking up 71 of those pages.

I will endeavor to cut to the core portions of the opinion, and share only what I feel to be the most relevant portions to gain an understanding of what the court said, and why the court said it; however, paring down 71 pages of majority and concurring opinions by necessity takes up some space. You can read the entire opinion here: In re Marriage Cases

For those who aren’t really interested in the court’s lengthy legal analysis below is a brief synopsis of what it said in 71 pages:

The legal issue presented in these appeals is straightforward: Did the trial court err when it concluded Family Code statutes defining civil marriage as the union between a man and a woman are unconstitutional? (Fam. Code, §§ 300, 301, 302, 308.5.)

Appellants assert legal error; respondents reiterate their arguments that excluding same sex couples from marriage violates due process and equal protection and is not supported by a compelling state interest. Our dissenting colleague advances theories and arguments not made by the parties or relied on by the trial court and concludes a constitutionally protected privacy interest compels expanding the definition of marriage to include same sex couples.

California has long sought to eliminate discrimination against gays and lesbians. Our Legislature has passed landmark legislation providing substantially all the rights, responsibilities, benefits and protections of marriage to same-sex couples who register as domestic partners. (Fam. Code, § 297 et seq.) We must now decide whether the state’s definition of marriage, which historically has precluded same-sex partners from marrying, is constitutional.

Obviously, the question is one of great significance, and it requires us to venture into the storm of a fierce national debate. Both sides believe passionately in their positions. One side argues the time has come for lesbian and gay relationships to enjoy full social equality, and it is fundamentally unfair for the state to continue to reserve marriage as an institution for heterosexual couples only. The other side stresses the need for judicial restraint and the importance of preserving the traditional understanding of marriage—which is very important to many Californians, who fear such a fundamental change will destroy or seriously weaken the institution at the heart of family life.

While we have considered all arguments raised on both sides of the issue, our task as an appellate court is not to decide who has the most compelling vision of what marriage is, or what it should be. “[T]he judiciary is not in the business of preferring, much less anointing, one value as more valid than another. . . .” (Lewis v. Harris (2005) 378 N.J. Super. 168, 200 [875 A.2d 259] (conc. opn. of Parrillo, J.A.D.).) We are called upon to decide only whether the statutory definition of marriage as the union of a man and a woman—which has existed, explicitly or implicitly, since the founding of our state—is unconstitutional because it does not permit gays and lesbians to marry persons of their choice.

All can agree that California has not deprived its gay and lesbian citizens of a right they previously enjoyed; same-sex couples have never before had the right to enter a civil marriage. It is also beyond dispute that our society has historically understood “marriage” to refer to the union of a man and a woman. These facts do not mean the opposite-sex nature of marriage can never change, or should never change, but they do limit our ability as a court to effect such change. The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage. “The role of the judiciary is not to rewrite legislation to satisfy the court’s, rather than the Legislature’s, sense of balance and order. Judges are not ‘ “knight[s]-errant, roaming at will in pursuit of [their] own ideal of beauty or of goodness.” ’ [Citation.]” (People v. Carter (1997) 58 Cal.App.4th 128, 134.) In other words, judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy.

Because we have a fundamentally different view of the appellate judicial function, at least in relation to these cases, we part ways with our dissenting colleague. The dissent delivers what is essentially an impassioned policy lecture on why marriage should be extended to same-sex couples. Lacking controlling precedent, it misconstrues case law and mischaracterizes the parties’ claims and our analysis to reach this result. But the court’s role is not to define social policy; it is only to decide legal issues based on precedent and the appellate record.

The six cases before us ultimately distill to the question of who gets to define marriage in our democratic society. We believe this power rests in the people and their elected representatives, and courts may not appropriate to themselves the power to change the definition of such a basic social institution. Our dissenting colleague’s views, while well intentioned, disregard this delicate balance. Moreover, his unfortunate rhetoric suggesting our opinion is an exercise in discrimination rather than a legitimate attempt to follow the law (dis. opn., post, at pp. 50-51) does nothing to advance the serious subject matter of these appeals.

We conclude California’s historical definition of marriage does not deprive individuals of a vested fundamental right or discriminate against a suspect class, and thus we analyze the marriage statutes to determine whether the opposite-sex requirement is rationally related to a legitimate government interest. According the Legislature the extreme deference that rational basis review requires, we conclude the marriage statutes are constitutional. The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat.

Background

The litigation which culminated in this appellate opinion originated in 2004 as a result of San Francisco Mayor Gavin Newsom’s issuance of marriage licenses to same sex couples, because in his opinion it was discriminatory not to:

Litigation in California over the right to same-sex marriage was sparked by the controversial decision of Gavin Newsom, Mayor of the City and County of San Francisco (City), to begin issuing marriage licenses without regard to the gender or sexual orientation of either prospective spouse. On February 10, 2004, Newsom sent a letter to County Clerk Nancy Alfaro asking her to alter the forms used in order to provide marriage licenses regardless of gender or sexual orientation. (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1069-1070 (Lockyer).)

Observing that “ ‘[t]he Supreme Courts in other states have held that equal protection provisions in their state constitutions prohibit discrimination against gay men and lesbians with respect to the rights and obligations flowing from marriage,’ ” the mayor stated his belief that these decisions were persuasive “ ‘and that the California Constitution similarly prohibits such discrimination.’ ” (Id. at p. 1070.) Finally, Mayor Newsom asserted his request “was made ‘[p]ursuant to [his] sworn duty to uphold the California Constitution, including specifically its equal protection clause . . . .’ ” (Ibid., fn. omitted.) In accordance with this directive, the City began issuing marriage licenses to same-sex couples on February 12, 2004. (Lockyer, supra, 33 Cal.4th at p. 1071.) The following day, two actions were filed in the San Francisco County Superior Court seeking an immediate stay and writ relief to halt the issuance of such licenses.

The superior court denied the petitions for an immediate stay requiring Mayor Newsom to stop issuing these marriage licenses. Therefore the California Attorney General filed a petition with the California Supreme Court requesting that it order Mayor Newsom to stop issuing the subject marriage licenses. The California Supreme Court did issue such an order in (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1069-1070 (Lockyer):

On August 12, 2004, the Supreme Court issued its opinion in Lockyer. Having concluded local officials in San Francisco exceeded their authority in issuing marriage licenses to same-sex couples, the court issued a writ of mandate directing these officials to enforce the statutes governing marriage “unless and until they are judicially determined to be unconstitutional” and compelling them to take remedial action with respect to marriages that were previously conducted in violation of applicable laws. (Lockyer, supra, 33 Cal.4th at pp. 1069, 1120.) A majority of the court also concluded that the approximately 4,000 same-sex marriages performed in San Francisco were void and of no legal effect. (Id. at pp. 1069, 1071, 1114.)4 The high court repeatedly stressed that the constitutional validity of California’s limitation of marriage to opposite-sex couples was not before it, and the court expressed no opinion on the issue. (Id. at p. 1069; see also id. at p. 1125 (conc. opn. of Moreno, J.); id. at pp. 1132-1133 (conc. & dis. opn. of Kennard, J.).)

In the meantime, The Judicial Council coordinated some cases directly challenging the constitutionality of California’s Marriage Laws, into one single case. That case proceeded though the trial court level in the court of Judge Richard A. Kramer, who eventually struck down California’s marriage laws as unconstitutional:

On April 13, 2005, the trial court issued its final decision. Although the City and other plaintiffs had also claimed the marriage laws violated their rights to due process and privacy, the court addressed only those challenges based on the equal protection clause of the California Constitution (Cal. Const., art. I § 7, subd. (a)). The court ruled that Family Code provisions limiting marriage in California to opposite-sex unions are subject to strict judicial scrutiny because they rest on a suspect classification (gender) and because they impinge upon the fundamental right to marry . . .

Accordingly, the court declared Family Code sections 300 and 308.5 unconstitutional under the California Constitution and entered judgment in each of the coordinated cases in favor of the City and/or the individual plaintiffs and interveners. Separate appeals from the state, the Fund and CCF followed, and we consolidated all six appeals for purposes of decision.

Discussion of Relevant Statutes

The California Supreme Court discussed the operative statutory framework surrounding marriage, as well as domestic partnerships in California. A brief understanding and review is important to the court’s later reasoning and analysis.

Marriage Statutes

The court pointed out that in California, marriage is entirely of statutory origin. The most significant California statute on the limitation of marriage between a man and a woman is California Family Code section 300.

Of these, the most significant is probably Family Code, section 300, which defines what a marriage is. Family Code, section 300 states, in relevant part: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” Gender-specific language also appears in sections 301 and 302 of the Family Code, which set the age of consent for marriage between “[a]n unmarried male” and “an unmarried female” at 18 years or older, absent parental consent and court approval.

The gender specifications were added to the Family Code’s definition of marriage in 1977. (Stats. 1977, ch. 339, § 1, p. 1295.) Previous versions of the statute stated only that 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 court also discussed Proposition 22, further limiting marriage in California to members of the opposite sex. For those California Saints, you will recall the Church was very involved in the grass roots effort in promoting Proposition 22:

A second statute limiting marriage in California to opposite-sex unions was passed by voter initiative in 2000. Proposition 22 added Family Code section 308.5, which states: “Only marriage between a man and a woman is valid or recognized in California.” . . .

Taken together, Family Code, sections 300 and 308.5 clearly and consistently limit the institution of marriage in California to opposite-sex unions. We must decide only whether the limitation is constitutional.

Domestic Partner Statutes

Before specifically addressing California’s Domestic Partner Statutes, it delineated California’s cutting edge legal history gay and lesbian anti-discrimination legislation. This discussion and history played a significant role in the court’s eventual decision in this case:

California has passed many laws to reduce discrimination against gays and lesbians. For example, the Unruh Civil Rights Act (Civ. Code, § 51) prohibits business establishments that offer services to the public from discriminating on the basis of sexual orientation . . .

Similarly, California’s Fair Employment and Housing Act expressly identifies sexual orientation discrimination as an unlawful employment practice. (Gov. Code, § 12940, subd. (a).)

Gays and lesbians are equally entitled to become foster parents or adoptive parents (Welf. & Inst. Code, § 16013 [“all persons engaged in providing care and services to foster children, including, but not limited to, foster parents, adoptive parents, relative caregivers, and other caregivers . . . shall not be subjected to discrimination or harassment on the basis of . . . sexual orientation”]), and the Supreme Court has upheld the use of “second parent” adoption as a means for a nonbiological parent to establish legal family ties with the child of his or her same-sex partner.

California passed its first Domestic Partner Statutes in 1999 creating a statewide domestic partnership registry:

In so doing, “California became one of the first states to allow cohabiting adults of the same sex to establish a ‘domestic partnership’ in lieu of the right to marry.” . . . Newly enacted Family Code, section 297 defined “domestic partners” as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” . . .

Soon after their creation, these domestic partnership laws were expanded by amendments that granted registered partners new legal rights . . . Then in 2003, with the passage of Assembly Bill No. 205 (2003-2004 Reg. Sess.), the Legislature significantly broadened domestic partnership rights by enacting comprehensive legislation: the California Domestic Partner Rights and Responsibilities Act of 2003 . . .

Family Code, section 297.5, subdivision (a) was added by the Domestic Partner Act and became operative on January 1, 2005. (Stats. 2003, ch. 421, § 4; Armijo v. Miles, supra, 127 Cal.App.4th at p. 1413.) This statute declares: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses.” (Fam. Code, § 297.5, subd. (a).) Specifically, registered domestic partners have the same rights and obligations as married spouses regarding financial support, property ownership, child custody and support. (Fam. Code, § 297.5, subds. (a)-(d).)

The court did point out, however, that there were some important exceptions to the California Domestic Partner Act. For example the act applies only to California law and not Federal law. While registered domestic partners in California enjoy all the benefits of California law, they still cannot jointly file federal income tax returns, nor is their earned income treated as community property for state or federal tax purposes.

Concluding its discussion of the state’s domestic partnership laws, the court also reviewed the state legislature’s recent attempts to extend marriage rights to same-sex couples. Suffice it to say that the bill passed both houses of the legislature; but, the governor vetoed the bill so that it did not become law. You can read the more pertinent part of the court’s discussion in its opinion.

The Constitutional Claims

The gay and lesbian couples who brought responded to the appeal of the trial court’s opinion based their constitutional claims on the theory that they had a fundamental right to marry. They argued that by limiting marriage to a man and woman, California discriminated against them in violation of the California Constitution’s due process and equal protection clauses:

Respondents claim Family Code provisions limiting marriage to unions between a man and a woman violate their fundamental right to marry, under the due process and equal protection clauses of the California Constitution, and discriminate against them on the basis of gender and sexual orientation, in violation of the equal protection clause. (Cal. Const., art. I, § 7, subd. (a) [“A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . .”].) Respondents also argue the marriage laws violate their constitutional rights to privacy and freedom of expression and association. (Cal. Const., art. I, §§ 1, 2.)

Constitutional Tests

Typically in a constitutional challenge to a law the court will go through a two step analysis applying either a strict scrutiny test or a more relaxed rational basis test to determine whether the statute passes constitutional muster. The courts will generally apply a strict scrutiny test if the right involved or impaired by the statute is a “fundamental right.” In this case the same-sex couples seeking marriage status claimed that their right to marry was such a fundamental right. The court’s explanation of these tests is illustrative:

A two-tiered analysis is typically used to determine the constitutionality of laws challenged under the equal protection clause, depending upon the classification involved or the nature of the interest affected. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16.) “Although normally any rational connection between distinctions drawn by a statute and the legitimate purpose thereof will suffice to uphold the statute’s constitutionality [citation], closer scrutiny is afforded a statute which affects fundamental interests or employs a suspect classification. [Citations.]” (In re Gary W. (1971) 5 Cal.3d 296, 306.)

If a law abridges a fundamental right, or employs a suspect classification, it is reviewed under the strict scrutiny test, under which “the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” (D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 17; see also Serrano v. Priest (1976) 18 Cal.3d 728, 761.) If the law does not impact a fundamental right or employ a suspect classification, we review it under the less stringent “rational relationship” test. (Hardy v. Stumpf (1978) 21 Cal.3d 1, 8; D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16.) Under this standard, which applies to most economic and social welfare legislation, a law passed by the Legislature or the people is presumed to be constitutional, and distinctions drawn by the law must merely “ ‘bear some rational relationship to a conceivable legitimate state purpose.’ [Citation.]” (D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16.) “Moreover, the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it.” (Id. at p. 17.)

California courts will look to federal case law construing federal constitutional analysis and rights; however, they are persuasive only. California law is the first stop California courts make when making the determination about whether a fundamental right exists.

No Fundamental Right To Same Sex Marriage

The court’s analysis in this case led to the conclusion that there is no fundamental right to same-sex marriage; however, it took a good 10 pages of case recitations and legal analysis to reach that conclusion. I’ll try to condense their reasoning considerably.

Marriage is a fundamental right–not same-sex marriage

The court began its analysis of fundamental rights confirming that marriage per se is in fact a fundamental right. All citizens, including prison inmates, have the fundamental right to marry the person of their choice. This is exactly where the same-sex couples asked the court to conclude their analysis. While marriage per se may be a fundamental right, the state has always placed reasonable limitations on that right including age restrictions, blood relatives, and polygamy:

Of course, the state imposes other limits on the right to marry a person of one’s choosing. For example, one’s intended spouse must be at least 18 years old, or else parental consent or a court order is required for the marriage to occur. (Fam. Code, §§ 301-303.) The intended spouse cannot be a blood relative within a specified degree of relationship, or else the marriage will be prohibited as incestuous. (Fam. Code, § 2200.) Bigamous and polygamous marriages are also illegal and void when entered. (Fam. Code, § 2201.) . . . Although the dissent assumes this question involves the mere application of Supreme Court precedents holding marriage is a fundamental right, the precise nature of this right is far from clear. “The Supreme Court has said that there is a constitutional ‘right to marry’; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal or a sunny day.” (Sunstein, The Right to Marry (2005) 26Cardozo L.Rev. 2081, 2081.)

Historically, marriage has always been defined or assumed to mean between a man and a woman. Until very recently no state, jurisdiction or foreign land ever defined marriage to include same-sex couples. There is only one appellate court opinion so holding, The Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health (2003) 440 Mass. 309 [798 N.E.2d 941] Since the historical definition of marriage has always been between one man and one woman, the precedential value of the line of cases establishing marriage as a fundamental right is limited.

One of the most important aspects of this appellate court’s opinion (I think) was its discussion of how carefully courts should tread in creating new fundamental rights. It noted how the judicial creation of fundamental rights essentially took the debate out of the public and legislative arenas and into the unelected and largely unaccountable courtroom:

In considering which side has the better definition of the right at stake, we heed the guiding principle that substantive due process analysis “must begin with a careful description of the asserted right.” (Reno v. Flores, supra, 507 U.S. at p. 302; see also Washington v. Glucksberg (1997) 521 U.S. 702, 721.) As our Supreme Court has explained, this “careful description” must be “concrete and particularized, rather than abstract and general.” (Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 940.)

Judicial restraint in the area of defining fundamental rights is especially important because “ ‘[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” [citation], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court, [citation].’ [Citation.]” (Id. at p. 939, quoting Washington v. Glucksberg, supra, 521 U.S. at p. 720.) Thus, the judicial branch has generally been reluctant to expand the catalog of rights protected as fundamental. (Washington v. Glucksberg, supra, 521 U.S. at p. 720; Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 141.) Considering the importance of judicial restraint in this area, we must agree with appellants that, carefully described, the right at issue in these cases is the right to samesex marriage, not simply marriage.

What really doomed the same-sex couples’ claim of a fundamental right was the fact that it was so new, so novel. Same-sex marriage is not and has never, ever been a fundamental right. Marriage yes. Same-sex marriage no! I love the historic constitutional language denoting a true fundamental right (emphasis is mine in this quote):

Furthermore, for purposes of a due process analysis, only rights that are “objectively, ‘deeply rooted in this Nation’s history and tradition,’ [citations] and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ ” are recognized as fundamental. (Washington v. Glucksberg, supra, 521 U.S. at pp. 720-721; Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 940; Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 708.) It is this prong of the analysis that dooms respondents’ fundamental rights claim.

Both liberty and justice will continue without American Jurisprudence recognizing same sex marriage–nor can I envision same-sex marriage as implicit in the concept of ordered liberty. I think this appellate court nailed it in this analysis:

Even the recent history of the last 50 years, however, does not demonstrate the existence of a “deeply rooted” right to or practice of same-sex marriage. While same-sex relationships have undeniably gained greater societal and legal acceptance, the simple fact is that same-sex marriage has never existed before. The novelty of this interest, more than anything else, is what precludes its recognition as a constitutionally protected fundamental right. . . [“A definition of marriage only recognized in Massachusetts and for less than two years cannot be said to be ‘deeply rooted in this Nation’s history and tradition’ of the last half century”]; see also Coshow v. City of Escondido, supra, 132 Cal.App.4th at p. 709 [noting the “mere novelty” of an asserted fundamental right “is sufficient to create a doubt” whether it is so deeply rooted in our country’s traditions and conscience as to be
considered fundamental]; Duncan, Legislative Deference & the Novelty of Same-Sex Marriage (2005) 16 Stan. L. & Pol’y. Rev. 83, 86 [“To this point, no court has ever held that same-sex marriage is deeply rooted in a state’s history and tradition”].)

The court gave its co-equal branch of government–the legislature–great deference in this opinion, and kept in check its own power:

Because marriage in this state has always been defined, implicitly or explicitly, as the union of opposite-sex individuals, the fundamental right respondents urge us to recognize requires a redefinition of the term “marriage.” Courts in this state simply do not have authority to redefine marriage. In California, “ ‘the Legislature has full control of the subject of marriage and may fix the conditions under which the marital status may be created or terminated. . . .’ [Citation.]” (Lockyer, supra, 33 Cal.4th at p. 1074.) The Legislature’s power to regulate marriage is thus exclusive, and subject only to constitutional restrictions. (Ibid. [“ ‘The regulation of marriage and divorce is solely within the province of the Legislature, except as the same may be restricted by the Constitution’ ”]; Estate of DePasse, supra, 97 Cal.App.4th at p. 99.) Our role is limited to determining whether the Legislature’s definition comports with constitutional standards. Were we to expand the definition of marriage to include same-sex unions, we would overstep our bounds as a coequal branch of government. (See Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 939 [courts must exercise caution in entertaining substantive due process challenges lest they assume an improper policymaking role]; see also Hernandez v. Robles, supra, 26 A.D.3d at p. 102 [805 N.Y.S.2d 354] [in “purportedly creat[ing] a new constitutional right” to same-sex marriage, lower court exceeded its constitutional mandate and usurped legislature’s function].) “While such a change of a basic element of the institution may eventually find favor with the Legislature”—and perhaps it will sooner rather than later, if the passage of Assembly Bill No. 849 is any indication—“we are not persuaded that the Due Process Clause requires a judicial redefinition of marriage.” (Samuels v. New York State Dept. of Health (2006) 29 A.D.3d 9 [811 N.Y.S.2d 136, 142]; see also Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 978 (dis. opn. of Spina, J.) [“The purpose of substantive due process is to protect existing rights, not to create new rights”].)

No Gender Discrimination in Marriage Laws

The same-sex couples argued that current California marriage laws restricting marriage to one man and one woman discriminated based on gender. I thought this was a rather odd argument, given the fact that both same-sex couples as well as heterosexual couples are free to marry as long as their spouse is of the opposite gender. The court pointed out the current laws make no gender based distinction at all:

Obviously, however, the opposite-sex requirement for marriage applies regardless of the applicant’s gender. The laws treat men and women exactly the same, in that neither group is permitted to marry a person of the same gender. We fail to see how a law that merely mentions gender can be labeled “discriminatory” when it does not disadvantage either group. (See Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 559-560 [“ ‘[D]iscriminate’ means ‘to make distinctions in treatment; show partiality (in favor of) or prejudice (against)’ ”]; Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at p. 45 [“where the operation of the law does not differ between one individual and another based upon a suspect classification, strict scrutiny is not required even though the law might mention matters such as race or gender”]; cf. Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490 [rejecting argument that discrimination against homosexuals was effectively “sex discrimination” prohibited by statute because it was discrimination based on the gender of the homosexual’s partner].)

[We are aware of no controlling authority imposing strict constitutional scrutiny on a law that merely mentions gender, without treating either group differently. Rather than dealing in semantics, a court’s primary concern in analyzing gender classificationsunder the equal protection clause is to ensure equal treatment for men and women.

Strict Scrutiny Not Triggered

If no fundamental right or a suspect class is involved then the standard of review is a rational basis rather than strict scrutiny. By this point, the court had already eliminated a fundamental right, since same-sex marriage is not considered a fundamental right. This left the question of whether same-sex couples could be considered a protected class.

“[w]hile all citizens are entitled to equal protection, the standard of review to be employed in analyzing legislation which singles out a particular group does depend on whether the group is classified as ‘suspect,’ as well as whether the legislation impinges upon a fundamental right. If a suspect class or fundamental right is involved, the court examines legislation under the ‘strict scrutiny’ standard; otherwise, a ‘rational basis’ test is generally employed. [Citation.]” (Citizens for Responsible Behavior v. Superior Court, supra, 1 Cal.App.4th at p. 1025.) Having concluded respondents are not seeking to exercise a fundamental right, we are therefore called upon to decide whether sexual orientation is a suspect classification for purposes of equal protection analysis. Unfortunately, prior case law does not provide a ready answer.

After reviewing federal and California case precedents and finding them lacking to establish sexual orientation as a suspect class the court concluded:

Lacking guidance from our Supreme Court or decisions from our sister Courts of Appeal, and lacking even a finding from the trial court on the issue, we decline to forge new ground in this case by declaring sexual orientation to be a suspect classification for purposes of equal protection analysis. Instead, we will follow the lead of the federal courts and other state courts and review the constitutionality of the marriage laws under the rational basis test.

In the latter part of its opinion the court dismissed claims that the marriage statutes violated privacy rights or prohibited freedom of expression.

The Rational Basis Review

Having arrived at the rational basis standard of review the court explained how California’s marriage statutes survived the rational basis scrutiny:

Because we have concluded the marriage statutes do not abridge a fundamental right or involve a suspect classification, we review them under the “rational basis” test. As noted, rational basis review is extremely deferential: “It manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and ‘requir[es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.’ [Citation.]” (D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16.) Under this standard of review, we must uphold the challenged law “ ‘if there is any reasonably conceivable state of facts that could provide a rational basis for the classification . . .

Under the rational basis test, then, we must decide whether the opposite-sex definition of marriage furthers a legitimate state interest. But the court’s role is not to look at interests served by an institution to see if it makes sense to expand the institution. That is policymaking. In reviewing the constitutionality of a statute, a court asks only whether valid state interests are served by limits the state has placed on the activity. Our task is to decide whether the challenged limit is constitutional, not whether state policies would be better served by removing the restriction.

Legitimate State Interests

1. Interest in promoting traditional definintion of marriage.

The Attorney General argued that California promoted a legitimate state interest by:

“maintaining the understanding of marriage that has always existed in California, while declaring that registered domestic partners shall have the same rights, protections and benefits as spouses.” Under rational basis review, it is appropriate for us to consider other relevant laws concerning the rights of same-sex couples, such as the Domestic Partner Act.

The court described California’s Domestic Partnership Act as:

[O]ne of the most comprehensive systems of rights and benefits for same-sex couples in the country. The Domestic Partner Act gives couples who register as domestic partners substantially “the same rights, protections and benefits” as married spouses, and imposes upon them “the same responsibilities, obligations and duties under law” as are imposed on married couples.

These efforts by the state helped promote and strengthened the traditional role and definition of marriage:

Here, the opposite-sex requirement in the marriage statutes is rationally related to the state’s interest in preserving the institution of marriage in its historical opposite-sex form, while also providing comparable rights to same-sex couples through domestic partnership laws. The same-sex requirement for couples under age 62 who register as domestic partners (Fam. Code, § 297, subd. (b)(5)) could be likewise justified by the state’s interest in providing rights to committed couples through this dual system. Contrary to the trial court’s assertion, the question for purposes of rational basis review is indeed whether this system is irrational. We conclude it is not . . .

Marriage is more than a “law,” of course; it is a social institution of profound significance to the citizens of this state, many of whom have expressed strong resistance to the idea of changing its historically opposite-sex nature. We cannot say the state’s interest in continuing this institution in the form it has always taken, and continues to take across the country, is so unreasonable that the marriage laws must be stricken under rational basis review. Given that the state affords same-sex couples “legal recognition comparable to marriage” (Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 845) through the domestic partnership laws, the state’s reliance on the history and tradition of opposite-sex marriage, and the common understanding of most citizens, does not appear to be a smokescreen hiding adiscriminatory intent.

2. Carrying out the will of its citizens.

The court also accepted the Attorney General’s argument that California had a legitimate state interest in carrying out the will of a clear majority of its citizens:

In 2000, voters in this state passed Proposition 22, enacting a law that provides only a marriage between a man and a woman is valid or recognized in California. (Fam. Code, § 308.5.) . . . the citizens who voted for Proposition 22 unquestionably expressed a desire to limit recognition of same-sex partnerships as marriage in this state. Meanwhile, the citizens’ elected representatives in the Legislature have found that the public policy of this state supports providing equal rights and opportunities for gay and lesbian families. (See Stats. 2003, ch. 421, § 1, subd. (b) [finding that expanding the rights and responsibilities of registered domestic partners furthers California’s interest in promoting and protecting stable family relationships]; see also Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 847 [public policy favoring domestic partnerships, like policy favoring marriage, “seeks to promote and protect families as well as reduce discrimination based on gender and sexual orientation”].) Thus, the Legislature has enacted sweeping domestic partnership laws to provide substantially the same rights as marriage to committed same-sex couples. By maintaining the traditional definition of marriage while simultaneously granting legal recognition and expanded rights to same-sex relationships, the Legislature has struck a careful balance to satisfy the diverse needs and desires of Californians.

It is not the judiciary’s function to reorder competing societal interests.

I found the majority’s concluding remarks very important, and actually quite refreshing. They pointed out how the court is not the proper institution to make sweeping changes in the fabric of society, such as changing the fundamental definition of marriage, which has stood the test of time for millennia (emphasis added is mine):

It is the proper role of the Legislature, not the court, to fashion laws that serve competing public policies. “The legislative process involves setting priorities, making difficult decisions, making imperfect decisions and approaching problems incrementally, and rational basis analysis does not require that a legislature take the ideal or best approach [citations].” (Hernandez v. Robles, supra, 26 A.D.3d at p. 106[805 N.Y.S.2d 354].)

Like Justice Sosman in Massachusetts, we “fully appreciate the strength of the temptation to find [the marriage laws] unconstitutional.” (Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 982 (dis. opn. of Sosman, J.).) Gay and lesbian couples can—and do—form committed, lasting relationships that compare favorably with any traditional marriage. Many same-sex couples have also devoted themselves to raising children, and these families are equally worthy of protection. (See Sharon S. v. Superior Court, supra, 31 Cal.4th at pp. 437-440.) But, absent infringement of a constitutional right, it is not for us to say the state must allow these couples to marry.

The Legislature and the voters of this state have determined that “marriage” in California is an institution reserved for opposite-sex couples, and it makes no difference whether we agree with their reasoning. We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem. (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 163; see also California Federation of Teachers v. Oxnard Elementary Sch. (1969) 272 Cal.App.2d 514, 535 [“It is not the duty of the courts to evaluate the wisdom of specific legislation”].) Respect for the considered judgment of the Legislature and the voters is especially warranted where the issue is so controversial and divisive as is the question whether gays and lesbians should be permitted to marry their same-sex partners. “It is not the judiciary’s function to reorder competing societal interests which have already been ordered by the Legislature. [Citation.]” (University of Southern California v. Superior Court (1996) 45 Cal.App.4th 1283, 1289; cf. Goodridge v. Department of Public Health, supra, 798 N.E.2d at p. 982 (dis. opn. of Sosman, J.) [great controversy and publicity surrounding same-sex marriage issue “make it all the more imperative that we adhere precisely and scrupulously to the established guideposts of our constitutional jurisprudence,” including the extreme deference accorded to legislative justifications under the rational basis test].)

In the final analysis, the court is not in the business of defining marriage. The Legislature has control of the subject of marriage, subject only to initiatives passed by the voters and constitutional restrictions. (Lockyer, supra, 33 Cal.4th at p. 1074; Estate of DePasse, supra, 97 Cal.App.4th at p. 99.) If marriage is to be extended to same-sex couples, this change must come from the people—either directly, through a voter initiative, or through their elected representatives in the Legislature.

Other Random Thoughts

So, now what happens? Well, the short answer is I don’t really know; however, I suspect there will be an appeal by the same-sex couples to California’s Supreme Court. The supreme court is not obligated to hear this appeal; but, given the societal import of this case and issue, I would not be surprised to see the court take the case. If it does, then this appellate opinion will no longer be valid as any precedent under California law.

I was struck by some of the language in the concurring opinion by Justice Parrilli, which I also wanted to share. It isn’t of any specific legal precedential value. Rather, I thought it more important for its clarification of the argument of some, that former antimiscegenation laws compel a conclusion favoring gay marriage–they do not:

The individuals in Perez v. Sharp (1948) 32 Cal.2d 711 and Loving v. Virginia (1967) 388 U.S. 1, were not excluded from the institution of marriage; the legal issue in these cases did not concern the definition of marriage. Rather they focused on what restrictions the state could legitimately impose based on the racial characteristics of the man and woman applying for a license. Had the cases involved same-sex couples of different races, one can imagine the opinions would have read very differently.

This illustrates the problem with using Perez and Loving as authority for the proposition that there is a fundamental right to marry a person of the same sex. The ability of same-sex couples to benefit from the “incidents of marriage” (dis. opn., post, at p. 16) or to enjoy the full capacity for human love and lasting commitment is not at issue. They are as capable as opposite-sex couples of doing so. Because Justice Kline recognizes they are similarly capable, he concludes same-sex couples must be given the right to marry. However, even if they are identically qualified to enjoy the benefits and attributes of marriage, it does not follow that the current statutory distinctions between the parallel institutions violate the Constitution. My dissenting colleague reads the existing case law imaginatively, but no amount of imagination entitles us to rely upon cases as authority for issues not addressed.

I am encouraged by this appellate court’s reasoning and conclusions. My own personal view is that if the California Supreme Court does take this appeal, that they have in place a framework with which to continue to uphold the traditional definition of marriage. I also stand with the united and unanimous governing quorums of this Church, The First Presidency and The Quorum of the Twelve Apostles in the principles and doctrines outlined in the The Family: A Proclamation to the World.

I believe those principles and doctrines to be those by which society should be governed–and when so governed they are more successful than when not. This legal ruling gives me hope that perhaps California will be more in harmony with that inspired document than were the courts to take a different legal position and direction.

Still, I am concerned. California’s legislature has passed a bill allowing same-sex marriage in California, despite the clear intent of California’s voters. Fortunately the governor vetoed that bill; however, now that California’s appellate courts are beginning to speak on this issue I worry about the legislature’s future response.

Also worthy of note is that the Church did file an amicus curiae brief, i.e., friend of the court brief in this case. I am trying to locate a copy of that brief, as I think it would be interesting to see what legal position the Church took in this case. I also note from the opinion that a group called Gay and Lesbian Mormons filed a similar brief–though clearly on for the opposite legal position–another brief that would be interesting to read.