California Supreme Court Rules Same-Sex Couples May Marry
Today, the California Supreme Court issued its decision in In Re Marriage Cases (May 15, 2008), ruling that a California statute defining marriage as “between a man and a woman” while excluding same-sex couples from the definition is a violation of the California constitutional rights of privacy and equal protection. The decision opens the door to same-sex marriage in the state of California. The supreme court of the state of Massachusetts reached a similar conclusion regarding a proposed (but not enacted) Massachusetts law in 2004, and the issue is also currently pending before the Connecticut Supreme Court.
California has provided legal protections of tangible benefits to same-sex domestic partnerships that are similar to marriage for several years. The Court was focused on whether the intangible differences resulting from the exclusion of same-sex couples from marriage are justified. Because the Court found the exclusion is not justified, the decision will enable same-sex couples to be married in the eyes of the State of California. However, federal law continues to define marriage as between a man and a woman for federal law purposes.
Among the more important legal aspects of the decision:
· Marriage is clearly recognized as a fundamental right.
· The California law excluding same-sex couples from the definition of marriage does not discriminate on the basis of sex, but does discriminate on the basis of sexual orientation.
· Differential treatment of individuals based on sexual orientation under the law will be subject to the “strict scrutiny” standard of review, which means the differential treatment must (1) serve a compelling state interest, and (2) be necessary to serve that compelling interest.
· Denying the fundamental right of marriage to persons of the same sex based on their sexual orientation (1) serves no compelling state interest, and (2) is not necessary to serve any compelling state interest.
· The Court rejected arguments that limiting marriage to opposite sex couples was justified to serve purposes of procreation, noting that a 1965 U.S. Supreme Court decision upheld a married couple’s right to use contraception to prevent procreation.
The Court’s analysis harkened back to a California Supreme Court decision in 1948 that struck down a California law that prohibited interracial marriage and was followed, nearly twenty years later in 1967, by the U.S. Supreme Court decision that struck down all such laws (called “miscegenation statutes”) across the United States.
California businesses and employers must be alert to the ramifications of this holding. As same-sex couples begin to exercise their new right to marry under California law, discrimination against these individuals, either as patrons of a business or employees, for doing so may subject employers and businesses to legal liability. Complaints of discrimination based on the exercise of the right to marriage by same-sex couples should be taken seriously, and you should consult qualified legal counsel if you require assistance with any such issues.