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The California Gay Marriage Case is a No-Brainer for the Ninth Circuit

Almost everyone (and his or her “significant other“) has already written about Judge Walker’s gay marriage opinion.  But I haven’t yet, so I’ll just address what seems to me to be the main point: the people of California have decided not to treat “domestic partnerships” one iota differently than “marriages”, and so Judge Walker is merely complaining about the words that the people of California have chosen to use.  That is nuts.  The people of California have a right of free speech, both as individuals and collectively, and they can call gay people “gay” and gay couples “domestic partnerships”.  Judge Walker wrote as follows in Perry v. Schwarzenegger:

California has created two separate and parallel institutions to provide couples with essentially the same rights and obligations. Cal Fam Code § 297.5(a)….California allows almost all opposite-sex couples only one option —— marriage —— and all same-sex couples only one option —— domestic partnership. See id, FF 53-54.  The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage.  Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples.

So, this case has nothing to do with any substantial rights, and is all about nomenclature.  Which, as I said, is nuts.  The people of California can collectively speak as they please.  Do you think this may be about something more than free speech?  Think again.  Last year, the California Supreme Court (by a vote of 6-1) wrote as follows in Strauss v. Horton :

The Attorney General’s contention … rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .”

Ah, but you still doubt that the people of California have a collective right to speak as they wish?  Well, aside from the plain text of the First Amendment, consider what the U.S. Supreme Court said in another case last year (Pleasant Grove v. Summum):

A government entity has the right to “speak for itself.”  Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000). “[I]t is entitled to say what it wishes,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) , and to select the views that it wants to express. See Rust v. Sullivan, 500 U.S. 173, 194 (1991) ; National Endowment for Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view”).

Indeed, it is not easy to imagine how government could function if it lacked this freedom.

So, basically, this case should be a slam dunk on appeal.  Emphasis on “should”.  When plaintiffs start arguing about “substantive due process”, many judges are apt to do whatever they think is best, and all bets are off. 

This would be a much more interesting case if the state were actually treating marriages differently from domestic partnerships, and doubtless that issue will eventually percolate up to SCOTUS from another state.  When that time comes, I will probably argue that – yes – the state does have a legitimate interest in ensuring that a child has a mother and father if that is feasible, and also in encouraging biological parents to bring up their children.  It is true that those two goals can sometimes conflict with each other, and it is also true that gay couples can sometimes be better parents than straight couples, but still I think those two goals are legitimate and worthy.  And even if I’m wrong about that (unlikely!), still the U.S. Constitution was not meant to give judges unlimited power to strike down every law that the judges think is illegitimate or unworthy.

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