Foreword: The marriage cases-reversing the burden of inertia in a pluralist constitutional democracy

California Law Review

Volumn 97, Issue 6, 2009, Pages 1785-1852

  Eskridge, William N ^a  

^a YALE UNIVERSITY   (United States)

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EID: 77950248988     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (453)

1. 198 P.2d 17 (Cal. 1948).
2. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
3. Massachusetts was the first.
4. See Goodridge v. Dep't Pub. Health, 798 N. E.2d 941 (Mass. 2003) ;
5. see also In re Opinions of the Justices to the Senate, 802 N. E.2d 565 (Mass. 2004) (reaffirming the court's opposition to the segregation of same-sex civil unions as established by legislation passed subsequent to the Goodridge decision).
6. Shortly after the Marriage Cases, the Connecticut Supreme Court struck down that state's exclusion of same-sex couples from marriage. Kerrigan v. Connecticut Dep't Pub. Health, 957 A.2d 407 (Conn. 2008).
7. Both Goodridge and Kerrigan were decided by 4-3 court majorities. In a unanimous opinion joined by all seven justices, the Iowa Supreme Court recently struck down its same-sex marriage ban. Varnum v. Brien, 763 N. W.2d 862 (Iowa 2009).
8. MICHAEL BARONE & RICHARD E. COHEN, The Almanac of American Politics, 144-52 (2006) (documenting California's fifty-three Representatives and two Senators and describing the state's preeminent demographic and economic position in this country).
9. Marriage Cases, 183 P.3d at 440-44.
10. Commonwealth v. Wasson, 842 S. W.2d 487, 499-500 (Ky. 1992) (dictum).
11. The unpublished opinion in Baehr v. Miike (Dec. 9, 1999) indicated that the Hawaii Supreme Court agreed that sexual orientation is a suspect classification, but the published opinion is just a summary order. Baehr v. Miike, 994 P.2d 566 (Haw. 1999).
12. Two courts have already followed California in ruling that sexual orientation discrimination requires heightened (but not strict) scrutiny.
13. See Kerrigan, 957 A.2d at 431-61;
14. Varnum, 763 N. W.2d at 889-96.
15. Marriage Cases, 183 P.3d at 419-34.
16. In 2005 and 2007, the California legislature passed bills to implement fundamental marriage rights for same-sex couples, but in both years Governor Arnold Schwarzenegger successfully vetoed those bills.
17. See Marriage Cases, 183 P.3d at 410 n. 17 (discussing the 2005
18. and 2007 same-sex marriage bills). In 2009, the legislatures of Vermont, Maine, and New Hampshire passed marriage recognition bills. The governor of Vermont vetoed the bill, but his veto was overridden on April 7, 2009. Act No. 3, S. 115, 2009-10 Leg. Sess. (Vt. 2009). The governor of Maine signed the bill into law on May 6, 2009. L. D. No. 1020, S. P. No. 384, 124th Leg., 1st Sess. (Me. 2009), but in November 2009, the voters revoked the new marriage law in a popular referendum. After negotiation of statutory language protecting religious freedom, the governor of New Hampshire likewise signed onto same-sex marriage on June 3, 2009. H. B. 436, 161st Sess. Gen. Ct. (N. H. 2009) ;
19. H. B. 310, 161st Sess. Gen. Ct (N. H. 2009) ;
20. H. B. 73, 161st Sess. Gen. Ct. (N. H. 2009).
21. WILLIAM N. ESKRIDGE, Jr., EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS (2002).
22. Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
23. 1850 Cal. Stat. 234, § 48.
24. See Brief of the Cato Institute as Amicus Curiae in Support of Petitioners, at app. 2, Lawrence v. Texas, 539 U. S. 558 (2003) (No. 02-102) [hereinafter Cato Lawrence Brief] (listing the reported nineteenth-century American sodomy cases). Disclosure: I was the primary author of this amicus brief.
25. 48 P. 800 (Cal. 1897).
26. 1See Cato Lawrence Brief, supra note 13, at 11-12 (documenting proof requirements for nineteenth-century sodomy laws). Under nineteenth-century sodomy laws, consenting "accomplices" could not provide sufficient evidence to convict of sodomy; this made it virtually impossible to enforce such laws against consensual conduct in the home. See id.
27. William N. Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946, 82 IOWA L. REV. 1007, 1014-16 (1997) [hereinafter Eskridge, Construction].
28. See NAN ALAMILLA BOYD, SXAN FRANCISCO WAS A WIDE-OPEN TOWN: A HISTORY OF QUEER SAN FRANCISCO TO 1965 (2003)
29. [hereinafter BOYD, WIDE-OPEN TOWN];
30. LILLIAN FADERMAN & SUART TIMMONS, GAY L. A.: A HISTORY OF SEXUAL OUTLAWS, POWER POLITICS, AND LIPSTICK LESBIANS 14-30 (2006) [hereinafter FADERMAN & TIMMONS, GAY L. A.].
31. On the transition from sodomite to degenerate
32. see JENNIFER TERRY, AMERICAN OBSESSION: SCIENCE, MEDICINE, AND HOMOSEXUALITY IN MODERN SOCIETY (1999).
33. See id.; see also WILLIAM N. ESKRIDGE, Jr., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET 17-37 (1994) [hereinafter ESKRIDGE, GAYLAW].
34. See, e.g., G. FRANK LYDSTON, THE DISEASES OF SOCIETY 37, 308-09, and passim (1904).
35. JONATHAN NED KATZ, GAY AMERICAN HISTORY 5-67 (1976) ;
36. Siobhan B. SOMERVILLE, QUEERING THE COLOR LINE: RACE AND THE INVENTION OF HOMOSEXUALITY IN AMERICAN CULTURE (2000).
37. Philip Auba Goff & Jennifer L. Eberhardt, Opinion, A Hateful Link, L. A. TIMES, Feb. 28, 2009, at A19.
38. ESKRIDGE, GAYLAW, supra note 19, at 209-11 (documenting the perseverance of popular understanding of "homosexuals" as dirty sub-humans who are predatory against youth).
39. For the story of the Long Beach arrests and prosecutions
40. see Publicity Is Needed and Then More Publicity, L. A. TIMES, Nov. 26, 1914, § 2, at 8 [hereinafter Publicity Is Needed];
41. see also FADERMAN & TIMMONS, supra note 17, at 30-37.
42. Publicity is Needed, supra note 24, § 2, at 8.
43. FADERMAN & TIMMONS, supra note 17, at 33-35.
44. 1915 Cal. Stat. 1022
45. repealed and replaced, 1921 Cal. Stat. 1633 (renaming the crime "oral copulation").
46. ESKRIDGE, GAYLAW, supra note 19, at 27-29.
47. Id.
48. Id. at 338 (listing California jurisdictions making public cross-dressing a crime). For a description of shifting police attitudes
49. see LOUIS SULLIVAN, FROM FEMALE TO MALE: THE LIFE OF JACK B. GARLAND (1990) (telling the life of Elvira Mugarietta, a woman who passed as a man from 1892 to 1936 in California).
50. 1903 Cal. Stat 97 (lewd vagrancy).
51. Id. at 235-36 (indecency).
52. See generally Arthur Sherry, Vagrants, Rogues, and Vagabonds-Old Concepts in Need of Revision, 48 CALIF. L. REV. 557 (1960) ;
53. see also Jon Gallo et al., The Consenting Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, 13 UCLA L. REV. 643 (1966) (student project).
54. 1921 Cal. Stat. 74.
55. See Eskridge, Construction, supra note 16, at 1110-11 app. 1 (sodomy arrests in nine American cities, 1875-1941) ;
56. id. at 1116-17 app. 2C (sex offense arrests in Richmond, 1875-1940) ;
57. id. at 1123-24 app. 3 ("degenerates" arraigned in New York City, 1915-48).
58. See, e.g., EDWARD STEVENSON, THE INTERSEXES (1908) ;
59. Eskridge, Construction, supra note 16, at 1112-13 app. 2B (sex offense arrests in San Francisco, 1860-1912).
60. ESKRIDGE, GAYLAW, supra note 19, at 374 app. C1;
61. see also WILLIAM N. ESKRIDGE, Jr., DISHONORABLE PASSIONS: SODOMY LAWS IN AMERICA, 1861-2003, at 63-67 (2008) [hereinafter ESKRIDGE, DISHONORABLE PASSIONS].
62. ESKRIDGE, GAYLAW, supra note 19, at 375 app. C2.
63. For examples of these activities from the increasing array of reported cases
64. see People v. Jordan, 74 P.2d 519 (Cal. App. 1937) ;
65. People v. Smink, 288 P. 873 (1930) ;
66. People v. Parisi, 261 P. 1072 (1927).
67. 1909 Cal. Stat. 1093-94.
68. CALIF. STATE DEP'T MENTAL HYGIENE, STATISTICAL RES. BUR., STERILIZATION OPERATIONS IN CALIFORNIA STATE HOSPITALS FOR THE MENTALLY ILL ETC., 1909-1960.
69. Id.
70. 316 U. S. 535 (1942) (striking down, on equal protection grounds, sterilization law that exempted white-collar crimes from this penalty) ;
71. see VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER AND THE NEAR TRIUMPH OF AMERICAN EUGENICS (2008) (historical analysis of Skinner).
72. ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 94, 96.
73. 1939 Cal. Stat. 1783 § 5500.
74. 1945 Cal. Stat. 623 § 5500.
75. E.g., People v. Bamett, 166 P.2d 4 (Cal. 1946) (early application of California's "sexual psychopath" law to treat a sexual "invert").
76. 1951 Cal. Stat. 4186 § 5501 (a).
77. 1955 Cal. Stat 1250.
78. John LaStala, Atascadero: Dachau for Queers?, ADVOCATE, Apr. 26, 1972, at 11.
79. Id. at 11, 13;
80. Rob Cole, Inside Atascadero: Life, Liberty, and the Pursuit of Treatment, ADVOCATE, Oct. 11, 1972, at 5.
81. Estelle Freedman, "Uncontrolled Desires": The Response to the Sexual Psychopath, 1920-1960, 74 J. AM. HIST. 83 (1987).
82. See ROBERT CORBER, HOMOSEXUALITY IN COLD WAR AMERICA: RESISTANCE TO THE CRISIS OF MASCULINITY (1997) ;
83. DAVID JOHNSON, THE LAVENDER SCARE: THE COLD WAR PERSECUTION OF GAYS AND LESBIANS IN THE FEDERAL GOVERNMENT (2003).
84. 1945 Cal. Stat. 1747-49.
85. 1947 Cal. Stat. 2562-63.
86. 1949 Cal. Stat. 1st Extr. Sess., 450-51 (Jan. 1950).
87. Id. at 512.
88. Id. at 476-77.
89. 1952 Cal. Stat. 1st Extr. Sess. 380-82 (April 1952).
90. 1952 Cal. Stat. chs. 389-390.
91. See generally Barry Copilow & Tom Coleman, Enforcement of Section 647 (a) of the California Penal Code by the Los Angeles Police Department, ADVOCATE, Feb. 14, 1973, at 2-3, 24 ("lewd vagrancy" law enforced almost exclusively against gay or bisexual men).
92. See E. CARRINGTON BOGGAN ET AL., THE RIGHTS OF GAY PEOPLE: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 211-35 (1975) (lists of disciplinary actions).
93. 1955 Cal. Stat. 2230, § 24200 (e).
94. ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN FEMALE (1953) ;
95. ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN MALE (1948).
96. See ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 109-27 (exploring the theoretical and practical implications of the Kinsey Reports for sodomy reform after 1948).
97. See. e.g., Nairn v. Nairn, 87 S. E.2d 749, 756 (Va. 1955)
98. remanded, 350 U. S. 891 (1955)
99. affd on remand, 90 S. E.2d 849 (Va.)
100. appeal dismissed, 350 U. S. 985 (1956) (upholding Virginia's antimiscegenation law on the ground that the statute was a rational means of protecting against a "mongrel breed of citizens"). The Virginia Supreme Court essentially reasoned that the state could not be compelled to "permit the corruption of blood" that would accompany marriage of a white person and a person of color. Id.
101. 234 P.2d 969 (Cal. 1951).
102. 347 P.2d 909 (Cal. 1959).
103. 371 P.2d 288 (Cal. 1962).
104. 355 U. S. 371 (1958) (per curiam).
105. See JOHN D'EMILIO, Sexual POLITICS, SEXUAL COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES, 1940-1970 (1983) ;
106. see also FADERMAN & TIMMONS, GAY L. A., supra note 17 (describing early Mattacbine activists in Los Angeles) ;
107. JOHNSON, supra note 53, at 179-214.
108. See, e.g., BOYD, WIDE-OPEN TOWN, supra note 17, at 173-76 (examining the tolerance-seeking philosophy of the early homophile associations after Mattachine purged its leftist founders).
109. See, e.g., Daughters of Bilitis-Purpose, LADDER, Oct. 1956, at 1, 4;
110. A Report from the Legal Director, S. F. MATTACHINE NEWSL., Dec. 1955.
111. See BOYD, WIDE-OPEN TOWN, supra note 17, at 209-12 (describing bar culture and other associations in San Francisco that were successful in garnering some local support for gay tolerance, even in light of "gayola" and other scandals revealing police corruption and abuse) ;
112. FADERMAN & TIMMONS, GAY L. A., supra note 17, at 141-58 (providing similar account of Los Angeles, but later in time).
113. For first-hand accounts of the police raid
114. see ERIC MARCUS, MAKING HISTORY: THE STRUGGLE FOR GAY AND LESBIAN EQUAL RIGHTS, 1945-1990, at 135-36 (1992).
115. Sasha Gregory-Lewis, Building a Gay Politic: The San Francisco Model, ADVOCATE, Oct. 8, 1975, at 27, 32.
116. DUDLEY CLENDINEN & ADAM NAGOURNEY, OUT FOR GOOD: THE STRUGGLE TO BUILD A GAY RIGHTS MOVEMENT IN AMERICA 148-63 (1999).
117. William N. Eskridge, Jr., Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981, 25 HOFSTRA L. REV. 817, 840-42 (1997).
118. On the Model Penal Code's suggested deletion of consensual sodomy laws and its rationale
119. see ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 118-24.
120. Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project, Tentative Draft No. 1 - Division 11: Crimes Against Sexual Morality, Public Decency, and the Family (1967).
121. Police Opinion Questionnaire Completed-Here Are the Results, LAW ENFORCEMENT J., July 1973 (copy available in the Assembly's Republican Caucus File for A. B. 489 [1973 Session]).
122. In re Davis, 51 Cal. Rptr. 701 (Cal. App. 1966).
123. Ruling Hits California's Oral Sex Law, ADVOCATE, Oct. 11, 1972, at 1;
124. San Diego Judge Strikes Felony Oral Copulation Law, ADVOCATE, Apr. 11, 1973, at 19.
125. 1975 Cal. Stat. 131-36.
126. For an account of the legislative maneuvering
127. see ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 197-201.
128. Interview by Professor William N. Eskridge, Jr., with Willie Brown, former Assemblyman, in San Francisco, Jan. 10, 2005.
129. ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 198-99 (providing account of the reasons advanced by opponents of sodomy repeal).
130. Sex Bill Passes in Historic Senate Tie-Breaker, ADVOCATE, May 21, 1975, at 4;
131. Johanna Neuman, Battle Over Consenting Sex Rages, Ends in Draw, L. A. DAILY J., May 2, 1975, at 1, 20.
132. See Barry Copilow & Tom Coleman, Enforcement of Section 647 (a) of the California Penal Code by the Los Angeles Police Department, ADVOCATE, Feb. 14, 1973, at 2-3, 24;
133. LOS ANGELES POLICE DEP'T, UPDATE: ENFORCEMENT OF SECTION 647 (A) OF THE CALIFORNIA PENAL CODE (1974).
134. See Letter from California Peace Officers' Ass'n et al. to Hon. Willie Brown, Jr. (Feb. 28, 1975) (objecting to sex crime reform that would allow "homosexuals" to solicit other men for sodomy) ;
135. Letter from George H. Murphy, Legislative Counsel of California, to Hon. Willie Brown, Jr., (Mar. 5, 1975) (opining that Brown's bill would not affect the vag lewd law barring sexual solicitation). These letters come from the Senate Committee files for the 1975 sex crimes law.
136. 599 P.2d 636 (Cal. 1979).
137. Id. at 6643-44.
138. Id. at 644.
139. Id. at 645-48.
140. 461 P.2d 375 (Cal. 1969).
141. Id. at 379-87.
142. See Board of Educ. v. Jack M., 566 P.2d 602 (Cal. 1977).
143. 1978 Cal. Ballot, Proposition 6, § 3 (b) (2) (operative language paraphrased in text) ;
144. see Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695, 1702-06 (1993) (discussion of Briggs Initiative).
145. Office of the Governor of California, Executive Order No. B-54-79 (Apr. 4, 1979).
146. For a collection of stories accounting for the price paid by closeted lesbian and gay teachers, and the liberating effect of being free from discrimination
147. see ONE TEACHER IN TEN: GAY AND LESBIAN EDUCATORS TELL THEIR STORIES (Kevin Jennings, ed., 1994).
148. The documentary legislative history of the clerks' proposal to clarify state marriage law is found in Record on Appeal at 1023-1182, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (Case No. S1479990).
149. 1977 Cal. Stat. 131.
150. See Senate Approves Measure Banning Gay Marriages, L. A. TIMES, Aug. 12, 1977, at B33 (accounts of the legislative debate).
151. BOYD, WIDE-OPEN TOWN, supra note 17, at 212;
152. Guy Strait, The Nightingale, S. F. NEWS, Dec. 23, 1963, at 4 (describing Sarria's campaign and his "Gay is Good" platform).
153. On Kameny's activism
154. see David K. Johnson, Homosexual Citizens: Washington's Gay Community Confronts the Civil Service, WASH. HIST., Fall/Winter 1994-95, at 45.
155. BOYD, WIDE-OPEN TOWN, supra note 17, at 200-36 (Gay is Good movement in San Francisco, 1950s-60s) ;
156. FADERMAN & TIMMONS, GAY L. A., supra note 17, at 148-58 (Los Angeles, 1960s).
157. Strait, supra note 102, at 4.
158. TASK FORCE ON HOMOSEXUALITY, NAT'L INST. MENTAL HEALTH, FINAL REPORT (1969).
159. See ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 152-58 (ambivalent ACLU attitude toward the rights of gay people in the 1950s evolves into an increasingly supportive stance in the 1960s).
160. Seymour Krim, Revolt of the Homosexual, MATTACHINE REV., May 1959, at 4-5, 9.
161. For an early formal espousal of the full equality goal for gay people
162. see WASH. MATTACHINE SOC'Y CONST, art. II, § 1 (a) - (c) (1962).
163. Harry Hay, Preliminary Concepts: International Bachelors' Fraternal Order for Peace and Social Dignity (1950), reprinted in RADICALLY GAY: GAY LIBERATION IN THE WORDS OF ITS FOUNDER 63-76 (Will Roscoe, ed., 1996).
164. In June 1969, hundreds of LGBT people rioted in and outside the Stonewall Inn in New York City. These riots stimulated large numbers of LGBT people to "come out of the closet" and demand political rights all over the country. The best introduction is DAVID CARTER, STONEWALL: THE RIOTS THAT SPARKED THE GAY REVOLUTION (2004) (recently made into a documentary film).
165. See RANDY SHILTS, THE MAYOR OF CASTRO STREET: THE LIFE AND TIMES OF HARVEY MILK (1985).
166. See JAMES T. SEARS, REBELS, RUBYFRUIT, and RHINESTONES: QUEERING SPACE IN THE STONEWALL SOUTH 226-45 (2001) (detailed account of the 1977 Dade County Referendum).
167. 595 P.2d 592 (Cal. 1979).
168. Id. at 610.
169. Id. at 618 (Richardson, J., dissenting) (rejecting the majority's application of the labor code's protection of "political activity" to the "homosexuals'" complaint) ;
170. see also id. at 613-18 (trenchant criticism of the majority's expansive interpretation of state constitutional and statutory protections as applied to "homosexuals").
171. See ESKRIDGE, GAYLAW, supra note 19, at 356 (App. B2).
172. See Executive Order No. B-54-79 (Apr. 4, 1979) (barring sexual orientation discrimination in state employment) ;
173. CAL. LAB. CODE § 1102.1 (2003) (2009 Supp.) (barring discrimination because of sexual orientation in private as well as public workplaces).
174. See Rolon v. Kulwitzky, 153 Cal. Rptr. 3d 289 (1984) (interpreting Unruh Act, Cal. Civ. Code § 51, to bar public accommodations from discriminating based on sexual orientation).
175. 2005 Cal. Stat. ch. 420 § 3.
176. Interview by Professor William N. Eskridge, Jr., with Matt Coles, in New York City (Dec. 29, 2004) (account of the domestic partnership idea by Coles, who was an author and supporter of the idea when he was a gay rights activist in San Francisco).
177. San Francisco Mayor Says No to Gay Marriage, BLADE, Jan. 26, 1983, at 9.
178. City of Berkeley, Policy Establishing Domestic Partnership Registration (1984)
179. cited and discussed in Craig Bowman & Blake Cornish, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 COLUM. L. REV. 1164, 1189 (1992).
180. See id. at 1189-95 (identifying and discussing these ordinances) ;
181. Raymond O'Brien, Domestic Partnership: Recognition Responsibility, 32 S AN DIEGO L. REV. 163 (1995) (similar).
182. Daniel Weintraub & Bettina Boxall, Ballot Fallout Expectedfrom Wilson's Veto, L. A. TIMES, Sept 13, 1994, at 3.
183. 1999 Cal. Stat ch. 588.
184. In re Marriage Cases, 183 P.3d 384, 409-10 (Cal. 2008) (discussing the 2000 Knight Initiative) ;
185. Cal. Stat ch. 421 (expanding domestic partnership rights, benefits, and duties).
186. A. B. 849, 2005-06 Reg. Sess. Calif. Legis. Governor Schwarzenegger successfully vetoed this bill in 2005, and a similar one in 2007.
187. See Marriage Cases, 183 P.3d at 410 n. 17.
188. E.g., Immerman v. Immerman, 1 Cal. Rptr. 248 (Ct. App. 1959) (holding that evidence of the wife's sexual relationship with another woman was relevant to determination of child custody in divorce proceedings).
189. See Nancy Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian and Other Non-Traditional Families, 90 GEO. L. J. 459 (1990) (explaining the concept of "second parent adoption" and urging judges to interpret adoption laws to accommodate children raised by same-sex couples).
190. Jennifer Pizer, What About the Children?, ADVOCATE, Nov. 9, 2001, at 1.
191. 73 P.3d 554 (Cal. 2003).
192. Compare id. at 568-70
193. with id. at 582-87 (Brown, J., concurring and dissenting).
194. CAL. FAM. CODE § 9000 (b), (g).
195. ROBERT A. DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES: CONFLICT AND CONSENT (1967) ;
196. Nicholas R. Miller, Pluralism and Social Choice, 77 AM. POL. SCI. REV. 734 (1983).
197. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 YALE L. J. 1279 (2005).
198. ADAM PRZEWORSKI, DEMOCRACY AND THE MARKET: POLITICAL AND ECONOMIC REFORMS IN EASTERN EUROPE AND LATIN AMERICA 36-37 (1991) ;
199. see also STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY 202-08, 222-27 (1995) (advocating "gag rules" to lower the stakes of primordial conversations).
200. PRZEWORSKI, supra note 137, at 26-37;
201. Miller, supra note 135, at 742.
202. See e.g., Brown v. Bd. of Educ, 347 U. S. 483 (1954) (overturning segregated schools because they have the effect of impeding the ability of an important social group to benefit from public education, understood as fundamental to American democracy).
203. This is the most legitimate criticism of Roe v. Wade, 410 U. S. 113 (1973).
204. See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Y ALE L. J. 920 (1973).
205. See e.g., Washington v. Glucksberg, 521 U. S. 702 (1997) (Court unanimously declining to announce a constitutional right to die, as body politic is just beginning serious debate on this important issue).
206. ESKRIDGE, EQUALITY PRACTICE, supra note 10.
207. See BOYD, WIDE-OPEN TOWN, supra note 17, at 194-236 (San Francisco, 1960s) ;
208. FADERMAN & TIMMONS, GAY L. A., supra note 17, at 148-218 (Los Angeles, 1964-75).
209. Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 595 P.2d 592 (Cal. 1979) (interpreting state labor code to bar private employment discrimination because of sexual orientation) ;
210. Exec. Order No. B-54-79 (Apr. 4, 1979) (barring state employment discrimination because of sexual orientation).
211. On the complicated politics of antidiscrimination and AIDS, see ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 201-28 (partially attributing renewed antigay attitudes to AIDS, 1980s), 274-98 (describing easing of AIDS backlash and renewed gay-tolerant and even gay-friendly attitudes).
212. Decades of lower court opinions were confirmed. See Sharon S. v. Super. Ct., 73 P.3d 554 (Cal. 2003).
213. For examples of domestic partnership registries created in California, see 1999 Cal. Stat ch. 588 (statewide, expanded in 2003 Cal. Stat. ch. 421) ;
214. Bowman & Cornish, supra note 123, at 1189-95 (county and municipal registries).
215. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE (1996) [hereinafter ESKRIDGE, CASE FOR SAME-SEX MARRIAGE]
216. (arguing that same-sex marriage is an idea whose time has come, and that courts ought to strike down laws barring lesbian and gay couples from getting married). The arguments accepted by the California Supreme Court in 2008 were set forth in the book.
217. Id. at 123-52 (arguing that fundamental right to marry applies to lesbian and gay couples), 172-82 (arguing that sexual orientation ought to be a suspect classification and thus an independent basis for strict scrutiny).
218. 198 P.2d 17 (Cal. 1948) (Traynor, J., plurality opinion).
219. 1933 Cal. Stat. 1472-73.
220. 388 U. S. 1 (1967).
221. Zablocki v. Redhail, 434 U. S. 374 (1978).
222. Turner v. Safley, 482 U. S. 78 (1987) (no written dissent from the proposition that the fundamental right to marry applies to men in prison for life; Justice Scalia took no public position on this issue, neither dissenting nor joining the majority opinion).
223. ESKRIDGE, CASE FOR SAME-SEX MARRIAGE, supra note 148, at 123-52.
224. Even courts that have struck down state bars to lesbian and gay marriages had, before the California Marriage Cases, either explicitly rejected the right to marry argument, see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (rejecting strict scrutiny based upon a fundamental right to marry but insisting on strict scrutiny because of the state's sex-based classification), or set aside that argument.
225. E.g., Goodridge v. Dep't of Pub. Health, 798 N. E.2d 941 (Mass. 2003) (ruling that the state exclusion of lesbian and gay couples from marriage lacked a rational basis and therefore did not require an analysis of the strict scrutiny arguments).
226. In fact, of course, most lesbian and gay adults did enjoy committed relationships, and many were raising children. The gay community's self-identification had already changed somewhat by 2000, but the perception by mainstream America changed more slowly.
227. See Aaron Xavier Fellmeth, State Regulation of Sexuality in International Human Rights Law and Theory, 50 WM. & MARY L. REV. 797, 853-54 (2008) (documenting the recognition of same-sex marriages in the listed countries).
228. Goodridge, 798 N. E.2d 941.
229. Mae Kuykendall, Resistance to Same-Sex Marriage as a Story About Language: Linguistic Failure and the Priority of a Living Language, 34 HARV. C. R.-C. L. L. REV. 385 (1999).
230. See Thomas M. Keck, Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBTRights, 43 LAW & SOC'Y REV. 151, 169 tbl.4 (2009).
231. See id. at 167 tbls. 2 & 3 (reporting steadily rising numbers of Americans who supported same-sex marriage or civil unions from 2000 to 2008).
232. The Massachusetts Supreme Court invalidated the statutory bar to same-sex marriage (by the same 4-3 majority as California). See Goodridge, 798 N. E.2d at 948. In 2004, the legislature voted for a constitutional amendment recognizing civil unions but preserving marriage for different-sex couples. The 2004 election was a triumph for supporters of same-sex marriage, and in 2005 the legislature voted against the constitutional amendment by a vote of 157 to 39.
233. Pam Belluck, Massachusetts Rejects Bill to Eliminate Gay Marriage, N. Y. TIMES, Dec. 15, 2004, at A14.
234. After the Canadian Supreme Court ruled that the state was required to afford the same legal rights and duties to same-sex couples as to different-sex couples in M. v. H, (1999) 2 S. C. R. 3, provincial courts in Ontario, Quebec, and Vancouver ruled same-sex marriage exclusions to be violations of the Canadian Charter.
235. See Robert Wintemute, Sexual Orientation and the Charter: The Achievement of Formal Legal Equality (1985-2005) and Its Limits, 49 MCGILL L. J. 1143 (2004).
236. In Minister of Home Affairs v. Fourie, 2006 (3) BCLR 355 (CC), 2005 SACLR LEXIS 34, the Constitutional Court of South Africa ruled that the exclusion of lesbian and gay couples from marriage violated the constitution's equality guarantee. (The Constitution of the Republic of South Africa specifically lists sexual orientation as a suspect classification.)
237. See, e.g., Michael J. Klarman, Brown and Lawrence (and Goodridge,), 104 MICH. L. REV. 431 (2005).
238. See Belluck, supra note 162 (2004 elections turned out several opponents of same-sex marriage and returned all supporters).
239. Although it could have invoked its override power under the Charter's "Notwithstanding Clause, " Parliament in 2005 responded by legislatively extending marriage to include same-sex couples. Civil Marriage Act, 2005 S. C. ch. 33 (Can.).
240. Wintemute, supra note 163, at 1172 (antigay party defeated in the first post-marriage election; 57 percent of Canadians supportive of same-sex marriage).
241. Civil Union Act 2006, art. 17 (2006).
242. On the demographics of the current American households, with record numbers headed by unmarried persons, see TAVIA SIMMONS & MARTIN O'CONNELL, U. S. CENSUS BUREAU, MARRIED COUPLE AND UNMARRIED-PARTNER HOUSEHOLDS: 2000 (2003).
243. Increasing numbers of openly straight Americans, including academics, have intervened in the gay marriage debate to argue for propounding a new state institution to replace civil marriage as the repository of rights and duties for couples.
244. See, e.g., Melissa Murray, Equal Rites and Equal Rights, 96 CALIF. L. REV. 1395 (2008).
245. Hernandez v. Robles, 855 N. E.2d 1 (N. Y. 2006).
246. Compare Perez v. Sharp, 198 P.2d 17, 35, 37-38, 41-43 (Cal. 1948)
247. (Shenk, J., dissenting) (espousing the State's arguments), with Answer Brief of State of California and the Attorney General to Opening Briefs on the Merits at 43-47
248. I n re Marriage Cases, 183 P.3d 384 (Cal. 2008) (Case No. S1479990) [hereinafter Attorney General's Answer Brief (Marriage)].
249. Compare Perez, 198 P.2d at 37
250. (Shenk, J., dissenting), with Attorney General's Answer Brief (Marriage), supra note 173, at 45-46.
251. Compare Perez, 198 P.2d at 45-46
252. (Shenk, I., dissenting), with Attorney General's Answer Brief (Marriage), supra note 173, at 48-54.
253. Attorney General's Answer Brief (Marriage), supra note 173, at 20-21.
254. Respondents' Opening Brief on the Merits, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (Case No. S1479990) ;
255. see also id. at 39-50 (also arguing for strict scrutiny on the grounds that the marriage exclusion is per se a sex discrimination claim and violates constitutional free speech guarantees). There were several other petitioners, each making similar arguments.
256. See, e.g., Petitioner City and County of San Francisco's Opening Brief on the Merits, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (Case No. S1479990) (arguing that the marriage exclusion of same-sex couples was unconstitutional because it lacked a rational basis and failed to satisfy strict scrutiny triggered by the sexual orientation classification and by infringements of the fundamental rights to privacy and to marriage).
257. Sail'er Inn, Inc. v. Kirby, 485 P.2d 529, 539-41 (Cal. 1971). Other courts have followed essentially these same criteria to find that sexual orientation is a suspect classification.
258. See Watkins v. U. S. Army, 847 F.2d 1329 (9th Cir. 1988)
259. vacated en banc, 875 F.2d 699 (9th Cir. 1989) ;
260. Tanner v. Or. Health Scis. Univ., 971 P.2d 435 (Or. 1998) ;
261. M. v. H., [1999] 3 S. C. R. 2 (Can. Sup. Ct.), ¶¶ 63-74.
262. Attorney General's Answer Brief (Marriage), supra note 173, at 24-25. The lower court had reasoned that sexual orientation could not be a suspect classification because it was not "immutable" in the way that race and sex are.
263. Id. at 25-38;
264. see also id. at 39-54 (arguing that homosexuality might be considered quasi-suspect, thereby triggering intermediate but not strict judicial scrutiny).
265. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) ;
266. see also id. at 73-77, 87-103 (outlining the rationale for a representation-reinforcing theory).
267. The quotations in the text are from United States v. Carotene Prods. Co., 304 U. S. 144, 152 n. 4 (1938), which was the inspiration for Ely's theory.
268. In re Marriage Cases, 183 P.3d 384, 442-43 (Cal. 2008).
269. There is a more detailed explanation for why political powerlessness ought not be a requisite for heightened scrutiny of sexual orientation classifications in Kerrigan v. Comm 'r of Pub. Health, 957 A.2d 407 (Conn. 2008).
270. Justice Palmer's opinion for the divided Connecticut Supreme Court posed the powerlessness question this way: Is it fair to impose the burden of political inertia on LGBT people? Id. at 444.
271. Cf. Buck v. Bell, 274 U. S. 200, 208 (1927) (Holmes, J.) (sarcastically rejecting an equal protection challenge to a state sterilization law as "the usual last resort of constitutional arguments").
272. For classic articulations, see, for example, John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019 (2001) ;
273. C. Sydney Buchanan, Same-Sex Marriage: The Linchpin Issue, 10 U. DAYTON L. REV. 541 (1985).
274. Marriage Cases, 183 P.3d at 464 (Baxter, J., concurring and dissenting) ;
275. id. at 785
276. (Corrigan, J., concurring and dissenting). Indeed, Justice Baxter made the remarkable argument that the marriage law does not even technically discriminate against gay people because the lesbian is free to marry a man. Id. at 465;
277. cf. Lawrence v. Texas, 539 U. S. 558 (2003) (Scalia, J., dissenting) (arguing mat Texas's "Homosexual Conduct Law" does not discriminate based on "homosexual" orientation, because it prohibits "homosexual conduct" by heterosexual people as well as by homosexual people) ;
278. Loving v. Virginia, 388 U. S. 1 (1967) (rejecting Virginia's argument that its antimiscegenation law does not discriminate against people of color, because its bar applies to white people as well).
279. By holding that a despised group is "similar" to the majority for equal protection purposes, even if in a small way, a judge opens up the judiciary to incalculable rage from the majority, for the very point of discriminating against powerless minorities is to set them apart as degraded, inferior, and wholly unlike the majority.
280. For demonstrations that the U. S. Supreme Court does not stray far from public opinion, see NATHAN PERSILY ET AL., PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY (2008) ;
281. William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Opinions, 87 AM. POL. SCI. REV. 87 (1993).
282. 852 P.2d 44 (Haw. 1993) (plurality opinion).
283. The tremendous backlash to Baehr is described in GERALD ROSENBERG, HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 362-63 (rev. ed. 2008) ;
284. David Orgon Coolidge, The Hawaii Marriage Amendment: Its Origins, Meaning, and Fate, 22 HAW. L. REV. 19 (2000).
285. See William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 NYU L. REV. 1327 (2000) [hereinafter Eskridge, No Promo Homo].
286. See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 H ARV. L. REV. 4, 42-56 (1994).
287. Perez v. Sharp, 198 P.2d 17, 19-20 (Cal. 1948).
288. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 NYU L. REV. 197 (1994).
289. In re Marriage Cases, 183 P.3d 384, 436 (Cal. 2008).
290. Perez, 198 P.2d at 19-20 (rejecting the state's argument that the antimiscegenation law did not discriminate because of race, as white persons were treated the same as persons of color).
291. Marriage Cases, 183 P.3d at 437-38;
292. see also Loving v. Virginia, 388 U. S. 1, 11 (1967) (white supremacy as stated reason for the Virginia antimiscegenation law).
293. Assembly Committee on Judiciary, Bill Digest, A. B. 607, 1977-1978 Reg. Sess., discussed in Marriage Cases, 183 P.3d at 440 n. 58.
294. Arp v. Workers' Comp. Appeals Bd., 53 P.2d 849, 854-55 (1977).
295. There is a substantial feminist literature on the close relationship between sexism and homophobia. See, e.g., SUZANNE PHARR, HOMOPHOBIA: A WEAPON OF SEXISM (1988) ;
296. Claudia Card, Why Homophobia?, 5 HYPATIA 110 (1990) ;
297. ADRIENNE RICH, COMPULSORY HETEROSEXUALITY AND LESBIAN EXISTENCE (1981).
298. See generally Koppelman, supra note 193, at 234-57 (collecting and discussing the extensive literature).
299. Koire v. Metro Car Wash, 707 P.2d 195, 201 (Cal. 1985)
300. (quoting LEO KANOWITZ, WOMEN AND THE LAW 4 (1969)).
301. Marriage Cases, 183 P.3d at 437-39 (Cal. 2008).
302. This argument originated with Edward Stein. See Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001) ;
303. see also ESKRIDGE, GAYLAW, supra note 19, at 223-28 (advancing but casting some doubt on this argument).
304. Kimberld Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991).
305. See Michelle Benecke & Kristin Dodge, Military Women in Nontraditional Fields: Casualties of the Armed Forces' War on Homosexuals, 13 HARV. WOMEN'S L. J. 215 (1990).
306. See ESKRIDGE, GAYLAW, supra note 19, at 227-28.
307. The most appreciative audience for the chief justice's opinion is gay people and their allies. Many gays (men as well as women) are themselves strong feminists, and non-gay feminists are gay people's most powerful allies, as are leading race theorists such as Professor Crenshaw. The chief justice's simplistic argumentation rejecting the sex discrimination argument might be expected to draw sharp reactions from lesbian and other feminists, from feminist gay men such as myself, and from race and other critical theorists.
308. See KENNETH KARST, BELONGING TO AMERICA: FEDERAL EQUAL CITIZENSHIP AND THE CONSTITUTION (1989).
309. CAL. CONST., art. XVIII, § 3.
310. Id. art. XVIII, § 2.
311. Id. art. XVIII, § 1.
312. Id. art. I, § 7.5 (new constitutional language added by Proposition 8).
313. ELIZABETH YOUNG-BRUEHL, THE ANATOMY OF PREJUDICES 32-37, 157-58 (1996).
314. See 1945 Cal. Stat. 623 § 5500 (amending the state sexual psychopath law, originally justified as a protection for children, to include sodomy between consenting adults as well).
315. 1978 Cal. Ballot, Prop. 6 (proposing to bar persons who advocate or practice homosexual relations from teaching in the state's public schools) (discussed in Hunter, supra note 96).
316. SHILTS, supra note 112, at 239 (quotations in text).
317. Id.
318. Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41 (1994) (answering the question posed by the title, "not particularly").
319. SHILTS, supra note 112, at 230
320. (quoting Briggs in one of his several debates with Milk). For a video presentation of one of the debates, see THE TIMES OF HARVEY MILK (Black Sand Productions 1984).
321. SHILTS, supra note 112, at 239 (quoting Briggs).
322. Id. at 248.
323. See Barbra Gamble, Putting Civil Rights to a Popular Vote, 41 AM. J. POL. SCI. 245 (1998) (documenting the rising tide of antigay initiatives and their unprecedented success rate, 1959-1993) ;
324. Donald Haider-Markel et al., Win, Lose, or Draw: A Re-Examination of Direct Democracy and Minority Rights, 60 POL. RES. Q. 304-14 (2007) (documenting that 71 percent of antigay ballot initiatives prevailed in the period 1972-2005).
325. For important normative context of antigay initiatives, see Jane Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 HARV. C. R.-C. L. L. REV. 283 (1994).
326. The Amendment 2 ballot materials are reprinted in Robert Nagel, Playing Defense, 6 WM. & MARY BILL OF RTS. J. 167, 191-99 (1997). They are discussed in light of Young-Bruehl's theory of prejudices.
327. See ESKRIDGE, GAYLAW, supra note 19, at 210-11.
328. Romer v. Evans, 517 U. S. 620 (1996) (striking down Amendment 2 as inconsistent with the Equal Protection Clause because the amendment's extreme breadth swept well beyond its asserted rational bases and suggested that it was grounded in antigay animus, a conclusion that was amply supported by the ballot materials referenced in text but not cited by the Court).
329. Daniel A. Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMM. 257 (1996).
330. ESKRIDGE, GAYLAW, supra note 19, at 209-18.
331. On the modernization of justification for practices harming women or minorities, see Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L. J. 2117, 2120 (1996) ;
332. Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives'Rights to Earnings, 1860-1930, 82 GEO. L. J. 2127 (1994).
333. Eskridge, No Promo Homo, supra note 190.
334. Defense of Marriage Act of 1996, Pub. L. No. 104-199, 110 Stat. 2419 (1996).
335. Id. § 2, codified at 28 U. S. C. § 1738C
336. Id. § 3, codified at 1 U. S. C. § 7.
337. 142 CONG. REC. H16.976 (daily ed. July 11, 1996) (statement of Rep. Canaday) (arguing for DOMA) ;
338. see id. at H17, 079 (daily ed. July 12, 1996) (statement of Rep. Canaday), (assertively uttering exactly the same words the next day).
339. H. R Rep. No. 104-664 (1996)
340. reprinted in 1996 U. S. C. C. A. N. 2905;
341. accord 142 Cong. Rec. S22, 451 (daily ed. July 12, 1996) (statement of Sen. Coates) (asserting that "traditional marriage and family in our law is not intolerance" and that "[t]olerance does not require us to say that all lifestyles are morally equal").
342. 142 CONG. REC. H17, 070 (daily ed. July 12, 1996).
343. The media repeatedly stressed that one of Senator Knight's sons was openly gay and that his son's coming out had created considerable tension with the father. E.g., Jennifer Warren, "State Sen. Knight Laments Son's Commentary, " L. A. TIMES, Oct. 15, 1999, at A3.
344. Interview with W. J. Pete Knight by Leon Worden (Apr. 1, 2004), available at http://www.scvhistory.com/scvhistory/signal/newsmaker/sg042504.htm [hereinafter 2004 Knight Interview] ("It's the institution of marriage that is being deliberately trashed by gay activists seeking same-sex marriage.").
345. LEAGUE OF WOMEN VOTERS, NONPARTISAN IN-DEPTH ANALYSIS OF PROPOSITION 22 (2000), available at http://ca.lwv.org/lwvc.files/mar00/id/prop22.htrnl.
346. 2004 Knight Interview, supra note 235.
347. See WILLIAM N. ESKRIDGE, JR. & DARREN SPEDALE, GAY MARRIAGE: FOR BETTER OR FOR WORSE? (2006) (comprehensive survey of Scandinavian registered partnership laws and practices). Although traditionalists claimed that Denmark's 1989 law had meant the "end of marriage" in that society, the evidence demonstrated that in the seventeen years after lesbian and gay unions were given almost all the legal duties and rights of marriage, the marriage rate had gone up (after decades of pre-1989 yearly declines) and the divorce rate had gone down (after decades of yearly increases).
348. See id. at 173-75. The nonmarital childbirth rate had stabilized (after going up fourfold from 1971 to 1989).
349. See id. at 190-92.
350. The pop-up cartoon is the portal through which the viewer enters www. ProtectMarriage.com, the website for the Yes-on-Eight groups.
351. Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008).
352. Memorandum of Real Parties in Interest Ron Prentice et al., in Opposition to Petition for Writ of Mandate, Jenkins v. Bowen, Case No. 34-2008-00017366-CU-WM-GDS (Super. Ct, County of Sacramento, Aug. 4, 2008) [hereinafter Opposition Memorandum].
353. CAL. EDUC. CODE §§ 51890 (a) (1) (D), 5I933 (b) (7) (2004) (stating that if a school district includes a program of sex and AIDS-prevention education, it is required to "teach respect for marriage and committed relationships").
354. Id. § 51500
355. as amended by 2007 Cal. Stat. ch. 569 (S. B. 777), § 29.
356. Opposition Memorandum, Jenkins v. Bowen, supra note 241, at 12-17.
357. Reply in Support of Petition for Writ of Mandate, Jenkins v. Bowen, supra note 241, at 9.
358. CAL. EDUC. CODE § 51240.
359. Under both the statute and the decision, schools could-and probably should-remain entirely neutral about the marriage debate. This may be an underlying problem for the primary boosters of Yes-on-Eight, namely traditionalist Mormons and Catholics. What the Marriage Cases would question is a school policy affirmatively teaching students that there is "real marriage" for straight couples and "phony marriage" or "second-class marriage" for homosexual couples. Such a policy could violate the constitutional rule of the Marriage Cases, primarily because it would be a discrimination based on sexual orientation and therefore subject to strict scrutiny. For religious traditionalists who wanted to use the schools as instruments for inculcating traditional family values (and mild denigration of lesbian and gay relationships), then their advertisement has more than a kernel of truth. But the ad goes further, to argue mat the Marriage Cases impose upon schools an affirmative duty to endorse gay marriage and to equate it with what they consider traditional marriage. That claim seems erroneous.
360. Amended Petition for Extraordinary Relief, Including Writ of Mandate and Request for Immediate Injunctive Relief; Memorandum of Points and Authorities, Strauss v. Horton, 207 P.3d 48 (Cal. Nov. 5, 2008) (Case No. S168047) [hereinafter "Prop. 8 Petition"]-
361. CAL. CONST., art. II, § 8, subd. (d) ("An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.") ;
362. see also Brosnahan v. Brown, 651 P.2d 274 (Cal. 1982) (ruling that a multi-faceted initiative-constitutional-amendment passed the single-subject test because all of the provisions were "germane" to an overall, easy-tounderstand constitutional goal).
363. CAL. CONST., art. XVIII.
364. 801 P.2d 1077 (Cal. 1990).
365. Proposition 115 (1990) amended CAL. CONST, art. I, § 24, to add the following: In criminal cases the rights of a defendant to equal protection of the laws, to due process of law, to the assistance of counsel, to be personally present with counsel, to a speedy and public trial, to compel the attendance of witnesses, to confront the witnesses against him or her, to be free from unreasonable searches and seizures, to privacy, to not be compelled to be a witness against himself or herself, to not be placed twice in jeopardy for the same offense, and not to suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.
366. See Livermore v. Waite, 36 P. 424, 425-26 (Cal. 1894) (upholding an amendment but indicating that fundamental changes can only be accomplished by revisions) ;
367. McFadden v. Jordan, 196 P.2d 787 (Cal. 1948) (holding that an extensive set of new provisions amounted to a "revision" of the state constitution).
368. Jordan, 196 P.2d at 799.
369. Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 583 P.2d 1281, 1286 (Cal. 1978)
370. (quoted in Raven, 801 P.2d 1077).
371. Raven, 801 P.2d at 1089 ("[I]n practical effect, the new provision vests a critical portion of state judicial power in the United States Supreme Court, certainly a fundamental change in our preexisting governmental plan. ").
372. See Strauss v. Horton, 207 P.3d 48, 98 (Cal. 2009) (describing the petitioners' precise legal claim that Proposition 8 represented a revision rather than an amendment).
373. Answer Brief in Response to the Petition for Extraordinary Relief at 22-53, Strauss v. Horton, Strauss v. Horton, 207 P.3d 48 (Cal. Nov. 5, 2008) (Case No. S168047) [hereinafter Prop. 8 Answer Brief].
374. Brief for Interveners in Response to the Petition for Extraordinary Relief at 6-14, 28-29
375. Strauss v. Horton, 207 P.3d 48 (Cal. Nov. 5, 2008) (Case No. S168047) [hereinafter Interveners' Answer to Petition].
376. See Amended Petition for Extraordinary Relief, Including Writ of Mandate and Request for Immediate Injunctive Relief; Memorandum of Points and Authorities at 35-43
377. Strauss v. Horton, 207 P.3d 48 (Cal. Nov. 5, 2008) (Case No. S168047). [hereinafter Prop. 8 Amended Petition].
378. People v. Freierson, 599 P.2d 587 (Cal. 1979) (upholding an initiative-constitutionalamendment reinstating the death penalty and overriding the Court's constitutional precedent to do so) ;
379. see also In re Lance W., 694 P.2d 744 (Cal. 1985) (ruling that an initiative-constitutionalamendment restricting the exclusionary rule for criminal defendants was not a fundamental change in the structure of government and therefore not invalid under Article XVIII).
380. Strauss, 207 P.3d at 122.
381. Id. at 124-29 (Werdegar, J., concurring in the result).
382. Id. at 129-40 (Moreno, J., concurring in part and dissenting in part).
383. Id. at 116-19 (George, C. J., for the court).
384. ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 93-99 (1956).
385. See supra Section II. B.
386. Strauss, 207 P.3d at 119-22 (George, C. J., for a unanimous court).
387. See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U. S. 204, 208 (1988) ;
388. Evangelatos v. Super. Ct, 753 P.2d 585, 597-98 (Cal. 1988).
389. U. S. CONST., art. VI.
390. 413 P.2d 825 (Cal. 1966)
391. aff'd sub nom. Reitman v. Mulkey, 387 U. S. 369 (1967).
392. 1966 Cal. Ballot, Prop. 14.
393. Reitman v. Mulkey, 387 U. S. 369 (1967).
394. See Strauss v. Horton, 207 P.3d 48, 78 n. 11 (Cal. 2009).
395. 478 U. S. 186 (1986).
396. See generally Lawrence v. Texas, 539 U. S. 558 (2003) (overruling Bowers and citing some of the critiques of the Court's many erroneous or factually misleading statements and assumptions).
397. The five states recognizing same-sex marriage are Massachusetts (2003), Connecticut (2008), Vermont (2009), Iowa (2009), and New Hampshire (2009).
398. Prop. 8 Answer Brief, supra note 258, at 79-82
399. discussed in Strauss, 207 P.3d at 116-19 (George, C. J., writing for the court).
400. Id.
401. Thus, the attorney general maintained that an important purpose for a written constitution is to create "inalienable" rights, namely, rights that cannot be taken away by popular majorities.
402. Id. at 79-80.
403. DONALD KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 55, 542 n. 90 (1997) (explaining the doctrine of " unconstitutional constitutional amendments").
404. The "Basic Law" mentioned above is the German Constitution. 281. THOMAS HOBBES, LEVIATHAN ch. XIII (1651).
405. Id. chs. XIV-XVIII.
406. Id. Review and Conclusion (1651) ;
407. see also THOMAS HOBBES, THE ELEMENTS OF LAW NATURAL AND POLITIC ¶ 20.5 (1650).
408. JOHN LOCKE, AN ESSAY CONCERNING THE TRUE ORIGINAL, EXTENT AND END OF CIVIL GOVERNMENT ¶ 222 (1689) (commonly referred to as the Second Treatise of Government).
409. Id. at ¶ 222;
410. see also id. at ¶¶ 223-43 (more detailed explanation and account).
411. JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785).
412. THE FEDERALIST No. 10 (James Madison) (arguing for bicameralism and presentment in order to reduce the problem of "factions"), No. 78 (Alexander Hamilton) (arguing for an independent judiciary to assure that "unjust and partial laws" would receive a narrow construction or be invalidated through judicial review).
413. See Melissa Lamb Saunders, Equal Protection, Class Legislation, and Color-Blindness, 96 MICH. L. REV. 245 (1996).
414. See id. at 251-68.
415. CAL. CONST., art. I, § 7 (a) - (b).
416. See Kenneth Karst, The Supreme Court, 1976 Term-Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 40-42 (1977).
417. On California's long history of demonizing homosexuals as predatory against children and as antifamily, see ESKRIDGE, DISHONORABLE PASSIONS, supra note 37, at 46-108.
418. On the uphill battle the gay and lesbian minority faces in popular votes, see Haider-Markel et al., supra note 221, at 304-14 (documenting that 71 percent of antigay ballot initiatives prevailed in the period 1972-2005).
419. Originally enacted in 1999 Cal. Stat. ch. 588, the Domestic Partner Act has been frequently amended and is codified at Cal. Fam. Code §§ 297-299.6 et al.
420. See In re Marriage Cases, 183 P.3d 384, 413-18 (Cal. 2008) (George, C. J., writing for the court), for a discussion of the statewide domestic partnership law in its evolution.
421. Strauss v. Horton, 207 P.3d 48, 102 (Cal. 2009) (George, C. J., writing for the court) ;
422. id. at 127-28 (Werdegar, J., concurring in the result).
423. Id. at 61 (George, C. J., writing for the court).
424. See THE FEDERALIST No. 10 (James Madison) (explaining why the framers of the U. S. Constitution rejected any role for direct democracy, namely, the fear that temporary "factions" would oppress minorities).
425. CAL. CONST., art. II, § 1.
426. Id. art. XVIII, §§ 1-3;
427. see also id. art. II, § 8 (b) (signature requirements for bypassing the legislature with a citizen-sponsored initiative).
428. See Bruce Cain et al., Constitutional Change: Is It Too Easy to Amend Our State Constitution?, in CONSTITUTIONAL REFORM IN CALIFORNIA: MAKING STATE GOVERNMENT MORE EFFECTIVE AND RESPONSIVE (Bruce Cain & Roger Noll eds., 1995).
429. See Strauss, 207 P.3d at 110 n. 34 (listing seventeen state constitutions that distinguish between amendments and revisions) ;
430. id. at 111-14 (discussing gay marriage decisions in other states following the amendment-revision distinction).
431. See Cain, supra note 299 (detailed data on state constitutional amendments and revisions).
432. Thirty states have state constitutional bars to marriage for same-sex couples, all of them adopted by popular initiatives. For a current list, see Lambda Legal, Status of Same-Sex Relationships Nationwide, http://www. lambdalegal.org/publications/articles/nationwide-statussame-sex-relabonships. html (last visited Jan. 13, 2009).
433. There were 144 constitutional conventions and 94 new state constitutions in the nineteenth century, but only 84 conventions and 23 new constitutions in the twentieth, and none since 1984.
434. G. Alan Tarr, Introduction, in 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE AGENDA OF STATE CONSTITUTIONAL REFORM xi-xii (G. Alan Tarr & Robert F. Williams eds., 2006).
435. To be sure, an initiative-constitutional-amendment can be proposed by the legislature, but my point is that constitutional amendments need not be. Also, the hyper-amendability phenomenon may be marginalizing the legislative- initiative option; it is easier to pay organizations to collect signatures than to persuade the legislature to place a matter on the ballot.
436. See Stephen Smith, Direct Democracy and Election and Ethics Laws, in DEMOCRACY IN THE STATES (Bruce E. Cain et al. eds., 2008).
437. See also Ely, supra note 181 (arguing from the premises of constitutionalism generally (and the U. S. Constitution in particular) that there needs to be an outside monitor to offset the tendency of political "insiders" to insulate themselves at the expense of the public interest).
438. While the statement in text seems to be true of the post-New Deal era, in the early twentieth century, voters tended to favor more regulation in many areas. For a historical and empirical analysis along these lines, see JOHN MATSUSAKA, FOR THE MANY OR THE FEW: THE INITIATIVE, PUBLIC POLICY, AND AMERICAN DEMOCRACY (2004).
439. For a thoughtful analysis of direct democracy and "special interests, " see ALAN GERBER, THE POPULIST PARADOX: INTEREST GROUP INFLUENCE AND THE PROMISE OF DIRECT DEMOCRACY (1999).
440. CAL. CONST., art. I. Like the German Constitution, the California Constitution's first article is its Declaration of Rights. Contrast the U. S. Constitution, whose Bill of Rights was added after the document was ratified and went into effect.
441. Such claims must be objectively plausible, for almost any issue can be expressed in terms of individual rights as well as policy. For example, contrast the equality claims of the plaintiffs in the Marriage Cases, which were not only plausible claims that had been accepted by other courts and were persuasive to a majority of the neutral arbiters of this Court, with the liberty claims made by the proponents of Proposition 8, such as the speculative (in my view, flatly incorrect) assertion made in some ads that marriage recognition for same-sex couples would require churches to give up their religious principles.
442. Many scholars are critical of the voters' ability to do a better job or even to figure out what is in their own interest, but for my positive argument I place those objections to one side.
443. As before, the analysis above does not apply to legislative- constitutional-amendments, which also require a two-thirds vote in the legislature to secure a place on the ballot. CAL. CONST., art. XVIII, § 1.
444. THE FEDERALIST No. 10 (James Madison).
445. CAL. CONST., art. I, § 7 (a).
446. Id. art. I, § 7 (b).
447. Chief Justice George's opinion for the court dismissed the attorney general's analysis as nothing more than warmed-over natural law. Strauss v. Horton, 207 P.3d 48, 116-19 (Cal. 2009). I think there is more to be said for the attorney general's theory.
448. See Prop. 8 Answer Brief, supra note 258, at 79-82.
449. See Memorandum of Points and Authorities in Support of Petition for Writ of Mandate at 10-17, Jenkins v. Bowen, Case No. 34-2008-00017366-CU-WM-GDS (Super. Ct., County of Sacramento, Aug. 4, 2008) (demonstrating the inaccuracy of proponents' claims that the Marriage Cases would force schools to teach a specific agenda).
450. Strauss, 207 P.3d at 103 (George, C. J., writing for the court).
451. Id. at 124-29 (Werdegar, J., concurring in the result).
452. Id. at 129-40 (Moreno, J., concurring and dissenting).
453. There could, of course, be a claim under the Equal Protection Clause of the Fourteenth Amendment, which was the basis for the California Supreme Court's holding in Mulkey. Whether the Roberts Court would extend the protections of Romer v. Evans to strike down a state constitutional amendment denying lesbian and gay couples all legal rights of marriage is a matter open to speculation.