Thursday, May 15, 2008

California Supremes validate gay marriage

The California Supreme Court handed down its decision today on the subject og gay marriage -- or perhaps more precisely, whether California's constitution allows the government, whether through initiative or legislative action, to forbid same-sex marriage or refuse to grant it equal standing. The court (4-3) concluded that it could not. I think it was a good decision.

I haven't read the full 172-page decision yet, but I read enough of it to get the gist. The court (Chief Justice Ron George wrote it), after disposing of some procedural and standing matters, noted that the constitution contains an equal-protection-of-the-laws provision, and the court in previous decisions had affirmed that various constitutional provisions recognize the right to marry as a fundamental individual right of such importance to society and of such value to individual people that government cannot restrict it. To deny it to a class of people because of their sexual orientation is discrimination of a kind that demands "strict scrutiny" (the highest standard of review) of laws that deny or restrict it. The state could show neither "compelling" nor "necessary reasons to deny it, therefore the laws that did so could not stand.

I found it pretty persuasive, and the Register's editorial tomorrow approves it. We'll hear a lot about activist judges inserting themselves into a policy decision that is rightly the province of the legislature and the people. After all, an initiative declaring that only marriage between a man and a woman may be valid or recognized in California passed by a healthy margin in 2000, and the Supremes just invalidated it. But in this case that argument doesn't hold. One of the purposes of a constitution -- the most signal simple example is the Bill of Rights of the national constitution -- is to declare which rights of citizens are so fundamental that the government may not violate them. If the legislative power enacts a law that does so it is the court's duty -- its most important duty -- to invalidate it and uphold the integrity of the constitution. That's what the court did here.

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