Same Sex Marriage Decision in California and its Possible Value in Irish Litigation

Yesterday the California Supreme Court declared state statutes that defined marriage as being between a man and a woman as unconstitutional (by reference to the Californian Constitution). In In re Marriage Cases (Cal. May 15, 2008) (Opinion) the State Supreme Court held that the essential substance and significance of the right to found a family required that the Californian Constitution had to be interpreted in a manner that would guarantee the right to all Californians, whether in opposite or same-sex relationships. Although California already had impressive domestic partnership laws that gave registered couples almost all the rights and obligations of marriage, the Supreme Court held that absolute equivalence was required. The Court did not hold that the term ‘marriage’ would have to be used to describe the required new legal framework, but whatever is introduced must be exactly the same in every way, including in name, for opposite and same-sex couples.

This decision echoes many of the elements of Perez v Sharp [(Oct. 1, 1948) 32 Cal.2d 711, 198 P.2d 17] – a decision from the same court in 1948 overturning laws that barred interracial marriage. As in Perez the Court held that the right to marry is a fundamental human right and means a right to establish a legally recognized family with a person of one’s own choice. Although this has historically been an opposite-sex structure, George CJ held that “tradition alone…does not justify the denial of a fundamental constitutional right”. The Court again echoed Perez when it held that the equal protection clause was engaged in relation to marriage-bans for same-sex couples. This case is the first one (to my knowledge) where a federal court has held that ‘strict scrutiny’ applies to differentiated treatment based on sexual orientation. In relatively simple terms, this means that rigorous justification must be advanced for differentiated treatment – ‘tradition’ would not be enough. [An ECHR lawyer can not help, it seems, but to hear echoes of Karner in this element of the judgment].

In re Marriage Cases is an extremely important decision for American law – its constitutional reasoning seems very sound, although there is an activist element which the dissenting judges, who claimed marriage was a question for the legislature alone, were particularly critical of. This case may also be useful in Ireland where constitutional principles are not entirely dissimilar to those with which the Californian Supreme Court was dealing. The Irish Constitution includes a right to marry [which does not specify marital form] and an equality clause [admittedly quite weak in historical perspective]. It seems quite plausible that similar reasoning would fit within our constitutional framework and it is to be expected that In re Marriage will make a comparative law appearance when the Supreme Court hears the appeal in Zappone & Gilligan v Revenue Commissioners. [KAL Case information is available here]