Not surprisingly, what the press and public most noticed about state superior court Judge Richard Kramer's opinion ordering same-sex marriage in California was - well, that it ordered same-sex marriage in California. (The decision is now on appeal.) Lost in the furor, however, was the dog that did not bark: a less controversial approach that the judge passed over and failed even to explore.
There are at least two enormously significant omissions from the opinion. While the court's reliance on Perez [a 1948 California Supreme Court decision overturning the state's ban on interracial marriage] is core to the opinion's reasoning, there is virtually no mention of the California Supreme Court's other landmark opinion relevant to this case, Gay Law Students v. Pacific Telephone and Telegraph.
In that decision, over a quarter of a century ago the state's highest court ruled for the first time that gays are specifically entitled to equal protection under Article 1, section 7(a) of the state constitution. In a case about the rights of lesbians and gay men, the lack of a citation to this longstanding key authority is remarkable, and may indicate a continuing fear, even among those like Judge Kramer who are willing to engage the issues faced by lesbians and gay men, of addressing their concerns directly, rather than through analogous law that is more settled on a high level of scrutiny, but less explicit about gay equality.
In addition, the court fails to mention the fact that there are two distinct equal protection clauses in California's constitution. Article I, section 7(a) provides that "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. . ." The second is an independent and more specific provision, found in subdivision (b): "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens."
Recognizing this distinction provides yet another way this case could have been decided - and goes to the heart of the political arguments that same-sex marriage cases now inflame. There are, in short, two ways courts have been dealing with the problem of discriminatory marriage laws - the Massachusetts model and the Vermont model - and California's equal protection clause would permit a court to take either path.
The Massachusetts model is the most politically volatile. Courts examine exclusionary marriage statutes and, doing their constitutional duty, acknowledge the rights of same-sex couples. In doing this, they exercise their longstanding and fundamental authority to counter the majoritarian prejudice against minorities by invalidating the laws that advantage the majority at the expense of the minority. This is well within the core reasons courts in this country are independent of the political branches - even if, as in California, judges are subject to regular retention elections.
However, as is well known, the bias against homosexuality is still virulent and explosive. More important, it can lead to the constitutional backlashes that now characterize this debate in many states, as well as in the current Congress. Same-sex marriage decisions spark deep and abiding anger in many people, who lash out at "activist judges" who are claimed to be "making law, not interpreting it."
The Vermont model offers a way to temper this. Baker v. State focused on the Vermont constitution's common benefits clause which, like Article 1, section 7(b) of California's constitution assures that some groups of citizens will not be given special benefits. The court in Baker ruled clearly that lesbians and gay men are entitled to equality under this constitutional provision. But rather than invalidating the law in the first instance, the court left it up to the legislature to decide how best to fulfill the promise of equal benefits. The Vermont legislature then did what legislatures do - compromised a bit by retaining opposite sex-marriage, but creating civil unions for same-sex couples.
The Massachusetts Supreme Judicial Court rejected just such a compromise in its second Opinions of the Justices, ruling that marriage and only marriage would truly be equal. That is, of course, true. But it also has very high political risks. The most obvious downside was illustrated in Hawaii, which was the first state whose high court ruled that same-sex couples were entitled to equal marriage rights. In 1993, the high court ruled that the state's marriage law violated the rights of same-sex couples. The case set off a furious debate over same-sex marriage across the country and resulted in the passage of the Defense of Marriage Act by the U.S. Congress, which allows states to refuse to recognize same-sex marriages contracted in other states.
The decision also created a backlash in Hawaii itself, where voters amended their state constitution to guarantee that same-sex couples were not, in fact, entitled to equal marriage rights. While the state subsequently passed a domestic-partnership-like law for same-sex couples, it remains the first state that amended its constitution to guarantee inequality for homosexuals.
At the very least, the failure to even examine this second section of California's equal protection clause exposes some of the dangers of the take-it-or-leave-it school of judicial decision-making in such highly combustible political contexts. While Judge Kramer's opinion is neither wrong nor unjust, it is perhaps incomplete. It is entirely possible that he would have chosen the Massachusetts model, even after having considered and rejected the Vermont option.
Judge Kramer's opinion several times includes language that a "superstructure of marriage-like benefits for same-sex couples is not remedy," and, "the State's position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well." Still, a decision coming to that conclusion, which does not address at all another, quite obvious constitutional option, is certainly open to the question of why the other differing constitutional provisions were not separately examined.