Equal rites and equal rights

California Law Review

Volumn 96, Issue 5, 2008, Pages 1395-1404

  Murray, Melissa ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 56049083045     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (44)

1. 43 Cal. 4th 757 (2008).
2. Id. at 855-57.
3. Massachusetts became the first state to do so in 2003. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003); see also Opinions of the Justices to the Senate, 802 N.E.2d 565, 566-72 (Mass. 2004) (clarifying the scope of Goodridge by holding that only marriage, and not a parallel institution, would remedy the constitutional violation).
4. See, e.g., Bob Egelko, Making History: California Supreme Court, in 4-3 Decision, Strikes Down Law That Bans Marriage of Same-Sex Couples, S.F. CHRON., May 16, 2008 at A1 (discussing decision); Adam Liptak, A California Court Overturns A Ban on Gay Marriage, N.Y. TIMES, May 16, 2008, at Al (same); Marriage Rights for All, L.A. TIMES, May 16, 2008 (same); Jesse McKinley, Gay Couples Celebrate; Both Sides See a Fight, N.Y. TIMES, May 16, 2008, at A19 (same).
5. Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003) (upholding Arizona's ban on same-sex marriage); Kerrigan v. State, 909 A.2d 89 (Conn. Super. Ct. 2006) (upholding Connecticut's ban on same-sex marriage) (appeal pending); Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002) (recognizing marriage as between one man and one woman); Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) (upholding Indiana's ban on same-sex marriage); Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. Aug. 30, 2007) (invalidating Iowa's ban on same-sex marriage on both due process and equal protection bases) (appeal pending); Conaway v. Deane, 932 A.2d 571 (Md. 2007) (upholding Maryland's ban on same-sex marriage); Goodridge, 798 N.E.2d 941 (finding that restricting marriage to opposite-sex couples had no rational basis and violated Massachusetts equal protection principles); Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (finding exclusion of same-sex couples from the rights and benefits of marriage violates equal protection guarantees of the New Jersey constitution); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (upholding New York's ban on same-sex marriage); Li v. State, 110 P.3d 91 (Or. 2005) (upholding Oregon's ban on same-sex marriage); Baker v. State, 744 A.2d 864 (Vt. 1999) (holding that, under Vermont's Common Benefits Clause, the privileges of civil marriage could not be denied to same-sex couples); Andersen v. King County, 138 P.3d 963 (Wash. 2006) (en bane) (upholding Washington's ban on same-sex marriage).
6. See Hernandez, 855 N.E. 2d at 5 (upholding New York's ban on same-sex marriage).
7. See Baker, 744 A.2d at 867 (finding state ban on same-sex marriage unconstitutional); Lewis, 908 A.2d at 200 (requiring the rights and benefits of marriage be equally available to same-sex couples).
8. VT. STAT. ANN. tit. 15, §§ 1201-1207 (2002); N.J. STAT. ANN. § 37:1-29 (West Supp. 2007).
9. Goodridge, 798 N.E.2d 941; Opinions of the Justices to the Senate, 802 N.E.2d at 566-72.
10. In re Marriage Cases, 43 Cal. 4th 757, 779-80 (2008).
11. Id. at 780. Indeed, as the Court made clear from the outset, its task was not to determine "whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership," but instead "whether the difference in the official names of the relationships violates the California Constitution". Id.(emphasis in original).
12. Id. at 830.
13. Id. at 831.
14. Id.
15. Id.
16. Id. at 844.
17. Id. ("The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.").
18. 339 U.S. 629, 634 (1950) (finding insufficient Texas's creation of a separate law school for African American students in lieu of admitting them to University of Texas Law School).
19. 518 U.S. 515, 555-56 (1996) (holding that Virginia's decision to establish a separate military program for women, in lieu of admitting them to the Virginia Military Institute, violated the Equal Protection Clause).
20. In re Marriage Cases, 43 CaL. 4th at 846.
21. Id. at 854 ("[W]e conclude that the state interest in limiting the designation of marriage exclusively to opposite-sex couples, and in excluding same-sex couples from access to that designation, cannot properly be considered a compelling state interest for equal protection purposes.").
22. Id. at 855-56.
23. Id. at 856.
24. See Dean E. Murphy, Same Sex. Marriage Wins Vote in California, N.Y. TIMES, Sept. 7, 2005, at A14; Haley Davies, Legislature OKs Same-Sex Marriage Bill, S.F. CHRON., Sept. 8, 2007, at B1.
25. See Dean E. Murphy, Schwarzenegger to Veto Same-Sex Marriage Bill, N.Y. TIMES, Sept. 8, 2005, at A18; Jill Tucker, Governor Cites Prop. 22 as He Vetoes Lena Bill, S.F. CHRON., Oct. 13, 2007, at B2.
26. The Court, by its own account, was sensitive to the importance of the marriage label in this legal battle. See In re Marriage Cases, 43 Cal. 4th at 856 ("In view of the lengthy history of the use of the term 'marriage' to describe the family relationship here at issue, and the importance that both the supporters of the 1977 amendment to the marriage statutes and the electors who voted in favor of Proposition 22 unquestionably attached to the designation of marriage, there can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state's general legislative policy and preference.").
27. Id. at 856.
28. Of course, some would argue that the decision does not do enough to destabilize the notion of a single vehicle for state recognition of adult relationships. Some scholars have challenged marriage's primacy and have argued for greater diversity in the legal recognition of adult relationships. I discuss some of these arguments briefly in Section C.
29. This, however, prompts the question of whether, upon recognizing a fundamental right to marry, the state could abolish marriage as a legal status. Some scholars have argued that unlike "negative rights that protect citizens from excessive intrusion by the state in protected activities, such as the right of free speech, religion, or family privacy ... the right to enter civil marriage is an affirmative right, defined solely by the government's creation of the licensing system and of the status with its attendant legal attributes." Elizabeth S. Scott, A World Without Marriage, 41 FAM. L.Q. 537, 545 (2007); see also Cass R. Sunstein, The Right to Marry, 26 CARDOZO L. REV. 2081, 2096 (2005) (analogizing the right to marry to the right to vote and arguing that "the 'right to marry' entails... an individual right of access to the official institution of marriage so long as the state provides that institution"). Under this view, the state is under no obligation to offer marriage licensing (and thus, could abolish marriage licensing altogether). However, if it is offered, it must be available equally. In its decision, the Court reasoned that the right to marry goes beyond the procedural question of licensing and instead has "independent substantive content." In re Marriage Cases, 43 CaL. 4th at 819. Consequently, under the Court's analysis, the substantive content of this right "embodies fundamental interests of an individual that are protected from abrogation or elimination by the state." Id. The Court's distinction between the substantive content of marriage and the state's role in licensing marriage might be seen as an attempt to avoid the difficult issues raised in the wake of the U.S. Supreme Court's desegregation order in Brown v. Board of Education, 347 U.S. 483 (1954). Following Brown, many Southern municipalities responded to the Court's order to integrate places of public accommodation by refusing to make such places available at all. Ultimately, the U.S. Supreme Court held that such a response did not violate the federal Equal Protection Clause. See Palmer v. Thompson, 403 U.S. 217 (1971) (holding that city's decision to close a public swimming pool, rather than integrating it, did not violate the federal Equal Protection Clause).
30. Carolyn Marshall, California Sets June Date for Same-Sex Marriage Licenses, N.Y. TIMES, May 29, 2008, at A17 (describing the preparations, including the revision of licensing forms, for the advent of same-sex marriages).
31. Jesse McKinley, California Ruling on Same-Sex Marriage Fuels a Battle, Rather Than Ending It, N.Y. TIMES, May 18, 2008, at A18 (describing efforts to curb the decision's force); Jesse McKinley, "I Do"? Oh, No. Not Here You Don't, N.Y. TIMES, June 13, 2008, at A18 (discussing Kern County's decision to stop performing marriages altogether, rather than perform same-sex unions); Jesse McKinley, States Seek Delay in California Marriage Ruling, N.Y. TIMES, May 31, 2008, at A10 (describing calls by the attorneys general often states to stay the Court's decision).
32. The proposed amendment reads as follows: "Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California." Protect Marriage, Read the Initiative, http://www.protectmarriage.com/read.php (last visited July 19, 2008).
33. This leaves aside the question of whether the ballot initiative - or any future ballot measure that seeks to amend the Constitution to prohibit same-sex marriage - would alter the constitutional commitment to equality so profoundly that it would constitute a constitutional revision requiring approval by two-third of the Legislature before being submitted to the voters. See Bob Egelko, Gay Marriage Backers Want Ban Issue Off Ballot, S.F. CHRON., June 21, 2008, at B3. It is worth noting that opponents of the initiative have made this claim, arguing that because it would withhold equal marriage rights, the proposed amendment requires legislative approval before it can be placed on the ballot. Id.
34. Undoubtedly, such a step would provoke intense criticism and calls of judicial activism and countermajoritarianism. I do not claim that such action on the part of the Court is likely, but rather, that the decision's emphasis on the constitutional commitment to family equality would permit such a response, however unlikely.
35. See discussion supra Part A; Katherine M. Franke, Longing for Loving, 76 FORDHAM L. REV. 2685, 2689 (2008) (discussing the "normative centrality and, indeed, priority of the institution of marriage" in our society).
36. See, e.g., CANDICE LEWIS BREDBENNER, A NATIONALITY OF HER OWN: WOMEN, MARRIAGE, AND THE LAW OF CITIZENSHIP (1998) (discussing marriage's role in constituting women's citizenship); NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000) (describing marriage's role in defining and delimiting citizenship); Nancy F. Cott, Marriage and Women's Citizenship in the United States, 1830-1934, 103 AM. HIST. REV. 1440 (1998) (analyzing the ideological underpinnings of the relationship between marriage and citizenship); Angela P. Harris, Loving Before and After the Law, 76 FORDHAM L. REV. 2821, 2821 (2008) (arguing that marriage should be viewed as "a practice of national citizenship").
37. BRENDA COSSMAN, SEXUAL CITIZENS: THE LEGAL AND CULTURAL REGULATION OF SEX AND BELONGING 7 (2007) (claiming that heterosexuality, and indirectly marriage, has been a boundary that historically has separated those considered citizens within the polity and those considered beyond the borders of political and civil inclusion); Katherine M. Franke, Becoming A Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 277 (1999) ("Formerly enslaved people and abolitionists generally deemed the right to marry one of the most important ramifications of emancipation.").
38. The denial of marriage rights to African Americans during the antebellum period profoundly underscored their civil and political marginalization. Franke, supra note 37 at 252 ("Antebellum social rules and laws considered enslaved people morally and legally unfit to marry."); Peter Wallenstein, Race, Marriage, and the Law of Freedom: Alabama and Virginia, lS60s-1960s, 70 CHI.-KENT L. REV. 371, 379 (1994) (noting that in the Dred Scott decision, "Chief Justice Roger B. Taney had stressed state laws banning marriage between blacks and whites to support the conclusion that blacks were not citizens"). Similarly, Leti Volpp has demonstrated the ways in which restrictions on Asian-American marriages made clear this group's marginalized status within the polity. Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. REV. 405 (2005).
39. See Franke, supra note 37, at 295 (discussing the postbellum use of marriage as a "civilizing" agent for newly freed African-American men and women); Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control, 93 CALIF. L. REV. 1647, 1694 (2005) (arguing that the contemporary emphasis on marriage promotion is an attempt to force African-American families to conform to Anglo-American family norms and practices).
40. See, e.g., Paula Ettelbrick, Since When Is Marriage a Path To Liberation?, in LESBIANS, GAY MEN, AND THE LAW 401, 402 (William B. Rubenstein ed., 1993) (describing marriage as an institution "[s]teeped in a patriarchal system that looks to ownership, property, and dominance of men over women as its basis"); Hernia Hill Kay, "Making Marriage and Divorce Safe for Women " Revisited, 32 HOFSTRA L. REV. 71, 90 (2003) (asserting that the law of marriage "is at bottom a codification of a society's attitudes about women").
41. Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 VA. L. REV. 385, 397 (2008) (describing coverture).
42. See, e.g., Laura A. Rosenbury, Friends with Benefits?, 106 MICH. L. REV. 189, 219 (2007) ("[T]he practice of marriage, as shaped by the state, plays a vital role in maintaining gender inequality.").
43. See, e.g., MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE 82 (1999) ("Marriage sanctifies some couples at the expense of others. It is selective legitimacy."); Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage ", 79 VA. L. REV. 1535, 1546 (1993) (arguing that extending marriage to same-sex couples would mean that "[m]arriage would be touted as the solution to these couples' problems; the limitations of marriage, and of a social system valuing one form of human relationship above all others, would be downplayed"); Michael Warner, Beyond Gay Marriage, in LEFT LEGALISM/LEFT CRITIQUE 259, 267 (Wendy Brown & Janet Halley eds., 2002) (asserting that same-sex marriage merely reinforces marriage as "the zone of privacy outside of which sex is unprotected"); Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1414 (2004) (arguing that the push for same-sex marriage rights has "created a path dependency that privileges privatized and domesticated rights and legal liabilities, while rendering less viable projects that advance nonnormative notions of kinship, intimacy, and sexuality"); Franke, supra note 35, at 2689 (explaining that "the legitimacy and respectability that law confers on marital couples reinforces the illegitimacy and deviance of those whose sexual, intimate, and affective commitments, if not merely contacts, lie in nonmarital contexts"); Lawrence Everett Forbes, A Brother As Significant as Any Other, N.Y. TIMES, July 13, 2008, at 6 (lamenting the "spreading legality" of same-sex marriage on the ground that it will further marginalize other forms of intimacy and commitment).
44. MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 228-30 (1995) (advocating the abolition of civil marriage in favor of state recognition of the mother-child caregiving dyad); NANCY D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW 7-9 (2008) (arguing that family equality requires shifting focus away from marriage and marriage equality towards valuing a diversity of familial arrangements); Rosenbury, supra note 42, at 233 (arguing for a the recognition of a multiplicity of personal relationships, including friendship); Franke, supra note 35, at 2703-05 (suggesting that because it exists in the absence of state regulation, friendship may be a useful alternative to marriage as the archetype of intimate association). Indeed, some scholars challenge not only marriage, but an entire system of state recognition predicated on conforming to traditional notions of coupled intimacy. See generally Laura A. Rosenbury and Jennifer Rothman, Beyond Intimacy (unpublished draft on file with author); Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Poly amorous Existence, 29 N.Y.U. REV. L. & SOC. CHANGE 277 (2004). It is worth noting that while In re Marriage Cases offers the possibility of legal regulation of adult intimate relationships through a rubric other than marriage, the decision does not go so far as to contemplate state recognition of a variety of intimate arrangements or arrangements that depart from the normative understanding of marriage.