Marriage in California After Strauss v. Horton

Posted on May 26th, 2009 by Katherine Franke

The California Supreme Court took the next step today in the ongoing battle over marriage rights for same sex couples, ruling 6-1 that the people of California had properly amended their constitution last November with Proposition 8, thereby limiting marriage to one man and one woman.   The Court’s opinion, widely predicted to come out as it did, now formally launches a Prop 8 redux for next fall, where there will surely be at least one proposition on the California ballot relating to marriage rights.

The majority’s 136-page opinion, written by Chief Justice George and joined by Justices Kennard, Baxter, Chin and Corrigan (Justice Werdegar concurred but wrote separately), is long on wind up, offering an extended explanation of what and how the Court ruled in the Marriage Cases last June.  They needed to do this as ground-laying for what the Court would ultimately do in the Prop 8 case: avoid the obvious conclusion that they are countenancing separate and not equal regimes for straight and gay couples seeking state recognition.  Straight people get marriage, gay people get civil unions – and the challenge was for the Court to find a way, a plausible and convincing way, of concluding that this dual regime doesn’t amount to an equal protection violation despite the fact that they pretty much held that it did a year ago in the Marriage Cases.

In their summary of the earlier marriage case, Justice George made quite clear a number of times that the California Constitution secures a set of rights which

include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities.

Thus, there is a right enjoyed by all to state recognition of “two adults who share a loving relationship to join together to establish an officially recognized family of their own.”   When the state “recognizes”  these relationships it must provide the bundle of rights ordinarily organized under the rubric of marriage, but it need not apply the term “marriage”  to all relationships so recognized.  Remember the oral argument in the case last March?  This is what many of the members of the Court kept coming back to (particularly the Chief Justice and Justice Kennard): aren’t we only talking about a label?  So long as the state gives you the same bundle of rights, what really is at stake in fighting over the term “marriage”?  The opponents of Prop 8  (Shannon Minter especially) were cornered having to say that the label was incredibly important, and the supporters of Prop 8 (Ken Starr in particular) were adamant that the term “marriage” didn’t mean that much at all.

Yes, you have a right to state recognition.  No, you don’t have a right to have your relationship recognized as a marriage.

Think of it like this: state X issues fishingcouture-wedding-dress licenses, and usually they call themwomens-waders-21 “fishing licenses.”  But suppose they want to give out-of-staters, or law professors or Mormons a different license for the same set of rights to hook fish on a line – let’s call it an “angling license.”   So long as the out of staters, law professors and Mormons get to do the same stuff with their “angling license” that everyone else can do with their “fishing license,” what’s the big deal?

That’s basically what the Court held today in Strauss v. Horton.  And it works, so long as you see marriage as a mere licensing scheme, and you regard a wedding dress as on a par with camouflage chest waders.

Most people, however, don’t see it that way, be they gay or straight.

Not being like most people on the marriage question, I think the decision in Strauss v. Horton suggests a different political strategy than the one we’ve been taking.  Sure, the Court’s effort to dodge the separate but equal problem is unpersuasive, but our analysis and our politics shouldn’t stop there.  It could also provoke a harder discussion about why our legal and political strategies are committed to a world in which the wedding dress is  sacred as compared with the chest waders.  What’s up with that?


  1. Gender & Sexuality Law Blog » Blog Archive » Marriage in …

  2. Gender & Sexuality Law Blog » Blog Archive » Marriage in …

  3. This is an intelligent analysis. I think perhaps an interesting approach would be to challenge the state’s legitimacy to recognize what they call “marriage” for any couple at all. Justice George’s interpretation of the California Constitution — that it “include(s), most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities” — seems to protect the state’s ability to recognize either a) a CIVIL UNION for any and all couples who so choose OR b) a MARRIAGE for any and all couples who so choose.

    Perhaps the problem is not with achieving equal rights at all (since, on paper, it seems that California’s three-tiered marriage/proto-gay marriage/civil union approach would offer “separate but equal” rights), but eliminating the term and concept of “marriage” from secular law altogether?

    In this way, we could leave “marriage” to the religious institutions (who would not be forced to perform a gay “marriage” if they did not want to) and only permit the state to follow its own Constitution and license one type of universal CIVIL UNION (call it whatever you like) for individuals “to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities.”

    Is there any way of legally questioning the state’s ability to sanction “marriage” altogether?

  4. time restraints and particular issue in their lives coach boots The beginning helps establish boundaries

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