A popular line of argument already being made against the ruling is that the legal outcome is “temporary.” Mention has been made about the outcomes of numerous referenda on the subject and that additional referenda are likely. In other words, the “will of the voters” will ultimately prevail. Not mentioned, of course, is the steady trend in public sentiment in which opposition to same-sex marriage has been steadily declining. In fact, a recent poll in California showed that 51% of those surveyed now favor same-sex marriage. Moreover, multiple polls show that younger persons have been persistently more favorably disposed toward same-sex marriage than older respondents and that disparity in opinion has not materially eroded as cohorts have aged. The persistently stronger support among younger persons suggests that the ongoing trend is not a temporary phenomenon.
But in the context of law, the U.S. Constitution, not public sentiment, which can fluctuate, is the supreme law of the land. The
14th Amendment states, in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Although that amendment was adopted with the purpose of bringing equality under the law to the freed slaves, the Supreme Court has applied the principle inherent in that amendment to a larger number of cases, particularly as they relate to rights under the law.
For example, characterizing the customary interpretation of the “equal protection” clause, Justice William Brennan
wrote:
Under “traditional” equal protection analysis, a legislative classification must be sustained unless it is “patently arbitrary” and bears no rational relationship to a legitimate governmental interest.
Justice Anthony Kennedy
explained:
One century ago, the first Justice Harlan admonished this Court that the Constitution “neither knows nor tolerates classes among citizens.” …Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle…
The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons…
We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.
In yesterday’s ruling in
Perry v. Schwarzenegger, Judge Vaughn Walker concluded that the proponents of Proposition 8 failed to meet the standards of demonstrating a “rational basis” for their position and that their position served a “legitimate state interest.” Arguments concerning tradition, caution in implementing social change, promoting opposite-sex parenting, protecting the freedom of those who oppose same-sex marriage, treating same-sex couples differently, and a blanket claim of “any other conceivable legitimate interests identified by the parties…” fell short of serving a legitimate state interest.
Barring the discovery of credible evidence illustrates a legitimate state or public interest related to a restrictive marriage law that was overlooked by Judge Walker (and one would have to deal strictly with the arguments made in the case, which were weak e.g., adoption laws that have been upheld negate the parenting line of argument) or significant legal error by Judge Walker (which seems unlikely given customary interpretations of the 14th Amendment), my guess is that subsequent court decisions will uphold Judge Walker’s ruling.
Ultimately, California and all other states will be required to afford same-sex couples the same opportunity they afford heterosexual couples and on identical terms. Hence, the “domestic partnership” option won’t be a viable legal alternative.
Of course, states could simply exit the “marriage” business, but that outcome is remote given their long-established role in that area. On a separate matter, religious institutions will retain their First Amendment protection, hence they will not be impacted by the outcome.