Why Judges Matter

So you think the war against radical Islam isn't reason enough to vote conservative even though this is the most compelling issue of our time.  If you look at history with the lead up to the second World War and all the appeasement efforts and all the desire to talk Germany, Japan, and Italy into reasonable behavior.  The very same mistakes are being made today with Islam and worse.  Supposing the war was not an issue, what would be the next most compelling issue of our time?

California's highest court has decided the people's will does not matter.  In a vote 4 to 3 they have decided to usurp the power of the people and to write law over the power and authority of the state legislature to impose their will on virtually the people of California.  I have linked the justification for their decision here.  But Justice Baxter in his dissenting opinion has explained far better than I can exactly why this decision is horrible wherever you stand on the gay marriage issue.  Just to state the reasons in a concise manner, Four people in black robes have usurped the will of the people of California, one of the most liberal states in the union and after we have voted to define marraige as a union between one man and one woman.  These four judges have overthrown the process and have read into the state's constitution something it does not say in order to force their will on all the rest of us.  If a Democrat wins this election, they will put judges on the highest court in the land who desire to use this method of legislating from the bench to usurp the will of the people and hand down decisions that overstep their authority the same as these judges have.

Gay marriage judges

CONCURRING AND DISSENTING OPINION BY BAXTER, J.
The majority opinion reflects considerable research, thought, and effort on
a significant and sensitive case, and I actually agree with several of the majority’s
conclusions. However, I cannot join the majority’s holding that the California
Constitution gives same-sex couples a right to marry. In reaching this decision,
I believe, the majority violates the separation of powers, and thereby commits
profound error.

Only one other American state recognizes the right the majority announces
today. So far, Congress, and virtually every court to consider the issue, has
rejected it. Nothing in our Constitution, express or implicit, compels the
majority’s startling conclusion that the age-old understanding of marriage — an
understanding recently confirmed by an initiative law — is no longer valid.
California statutes already recognize same-sex unions and grant them all the
substantive legal rights this state can bestow. If there is to be a further sea change
in the social and legal understanding of marriage itself, that evolution should occur
by similar democratic means. The majority forecloses this ordinary democratic
process, and, in doing so, oversteps its authority.

The majority’s mode of analysis is particularly troubling. The majority
relies heavily on the Legislature’s adoption of progressive civil rights protections
for gays and lesbians to find a constitutional right to same-sex marriage. In effect,
the majority gives the Legislature indirectly power that body does not directly
possess to amend the Constitution and repeal an initiative statute. I cannot
subscribe to the majority’s reasoning, or to its result.

As noted above, I do not dispute everything the majority says. At the
outset, I join the majority’s observation that “[f]rom the beginning of California
statehood, the legal institution of civil marriage has been understood to refer to a
relationship between a man and a woman.” (Maj. opn., ante, at p. 23, fn. omitted.)
Moreover, I endorse the majority’s interpretation of California’s Domestic
Partnership Act (DPA; Fam. Code, § 297 et seq.). As the majority makes clear,
the DPA now allows same-sex partners to enter legal unions which “afford . . .
virtually all of the [substantive] benefits and responsibilities afforded by California
law to married opposite-sex couples.” (Maj. opn., ante, at p. 45; see also Fam.
Code, § 297.5.) As the majority further correctly observes, California has done all
it can do with regard to providing these substantive rights, benefits, and
responsibilities to same-sex partners. (Maj. opn., ante, at pp. 44-45.)1

I also agree with the majority’s construction of Family Code section 308.5.
As the majority explains, this initiative statute, adopted by a popular vote of 61.4
percent and thus immune from unilateral repeal by the Legislature (Cal. Const.,
art. II, § 10, subdivision (c)), does not merely preclude California’s recognition of
same-sex “marriage[s]” consummated elsewhere, but also invalidates same-sex
“marriage[s]” contracted under that name in this state.2

In addition, I am fully in accord with the majority’s conclusion that Family
Code sections 300 and 308.5, insofar as they recognize only legal relationships
between opposite-sex partners as “marriage[s],” do not discriminate on the basis of
gender.

Finally, I concur that the actions in Proposition 22 Legal Defense and
Education Fund v. City and County of San Francisco (Super. Ct. S.F. City &
County No. CPF-04-503943) and Campaign for California Families v. Newsom
(Super. Ct. S.F. City & County No. CGC-04-428794) should have been dismissed
as moot in the wake of this court’s decision in Lockyer v. City and County of San
Francisco (2004) 33 Cal.4th 1055.

However, I respectfully disagree with the remainder of the conclusions
reached by the majority.

The question presented by this case is simple and stark. It comes down to
this: Even though California’s progressive laws, recently adopted through the
democratic process, have pioneered the rights of same-sex partners to enter legal
unions with all the substantive benefits of opposite-sex legal unions, do those laws
nonetheless violate the California Constitution because at present, in deference to
long and universal tradition, by a convincing popular vote, and in accord with
express national policy (see fns. 1, 2, ante), they reserve the label “marriage” for
opposite-sex legal unions?3 I must conclude that the answer is no.

The People, directly or through their elected representatives, have every
right to adopt laws abrogating the historic understanding that civil marriage is
between a man and a woman. The rapid growth in California of statutory protections
for the rights of gays and lesbians, as individuals, as parents, and as
committed partners, suggests a quickening evolution of community attitudes on
these issues. Recent years have seen the development of an intense debate about
same-sex marriage. Advocates of this cause have had real success in the
marketplace of ideas, gaining attention and considerable public support. Left to its
own devices, the ordinary democratic process might well produce, ere long, a
consensus among most Californians that the term “marriage” should, in civil
parlance, include the legal unions of same-sex partners.

But a bare majority of this court, not satisfied with the pace of democratic
change, now abruptly forestalls that process and substitutes, by judicial fiat, its
own social policy views for those expressed by the People themselves.
Undeterred by the strong weight of state and federal law and authority,4 the
majority invents a new constitutional right, immune from the ordinary process of
legislative consideration. The majority finds that our Constitution suddenly
demands no less than a permanent redefinition of marriage, regardless of the
popular will.

In doing so, the majority holds, in effect, that the Legislature has done
indirectly what the Constitution prohibits it from doing directly. Under article II,
section 10, subdivision (c), that body cannot unilaterally repeal an initiative
statute, such as Family Code section 308.5, unless the initiative measure itself so
provides. Section 308.5 contains no such provision. Yet the majority suggests
that, by enacting other statutes which do provide substantial rights to gays and
lesbians — including domestic partnership rights which, under section 308.5, the
Legislature could not call “marriage” — the Legislature has given “explicit
official recognition” (maj. opn., ante, at pp. 68, 69) to a California right of equal
treatment which, because it includes the right to marry, thereby invalidates section
308.5.5

I cannot join this exercise in legal jujitsu, by which the Legislature’s own
weight is used against it to create a constitutional right from whole cloth, defeat
the People’s will, and invalidate a statute otherwise immune from legislative
interference. Though the majority insists otherwise, its pronouncement seriously
oversteps the judicial power. The majority purports to apply certain fundamental
provisions of the state Constitution, but it runs afoul of another just as fundamental
— article III, section 3, the separation of powers clause. This clause declares that
“[t]he powers of state government are legislative, executive, and judicial,” and that
“[p]ersons charged with the exercise of one power may not exercise either of the
others” except as the Constitution itself specifically provides. (Italics added.)
History confirms the importance of the judiciary’s constitutional role as a
check against majoritarian abuse. Still, courts must use caution when exercising
the potentially transformative authority to articulate constitutional rights.
Otherwise, judges with limited accountability risk infringing upon our society’s
most basic shared premise — the People’s general right, directly or through their
chosen legislators, to decide fundamental issues of public policy for themselves.
Judicial restraint is particularly appropriate where, as here, the claimed
constitutional entitlement is of recent conception and challenges the most
fundamental assumption about a basic social institution.

The majority has violated these principles. It simply does not have the right
to erase, then recast, the age-old definition of marriage, as virtually all societies
have understood it, in order to satisfy its own contemporary notions of equality
and justice.

The California Constitution says nothing about the rights of same-sex
couples to marry. On the contrary, as the majority concedes, our original
Constitution, effective from the moment of statehood, evidenced an assumption
that marriage was between partners of the opposite sex. Statutes enacted at the
state’s first legislative session confirmed this assumption, which has continued to
the present day. When the Legislature realized that 1971 amendments to the Civil
Code, enacted for other reasons, had created an ambiguity on the point, the
oversight was quickly corrected, and the definition of marriage as between a man
and a woman was made explicit. (Maj. opn., ante, at pp. 23-36.) The People
themselves reaffirmed this definition when, in the year 2000, they adopted
Proposition 22 by a 61.4 percent majority.

Despite this history, plaintiffs first insist they have a fundamental right,
protected by the California Constitution’s due process and privacy clauses (Cal.
Const., art. I, §§ 1, 7, subd. (a)), to marry the adult consenting partners of their
choice, regardless of gender. The majority largely accepts this contention. It
holds that “the right to marry, as embodied in article I, sections 1 and 7, of the
California Constitution, guarantees same-sex couples the same substantive
constitutional rights as opposite-sex couples to . . . enter with [one’s chosen life
partner] into a committed, officially recognized, and protected family relationship
that enjoys all of the constitutionally based incidents of marriage.” (Maj. opn.,
ante, at p. 79, fn. omitted.) Further, the majority declares, a “core element[ ] of
this fundamental right is the right of same-sex couples to have their official family
relationship accorded the same dignity, respect, and stature as that accorded to all
other officially recognized family relationships.” (Id., at p. 81.)

To the extent this means same-sex couples have a fundamental right to
enter legally recognized family unions called “marriage” (or, as the majority
unrealistically suggests, by another name common to both same-sex and opposite-
sex unions), I cannot agree. I find no persuasive basis in our Constitution or our
jurisprudence to justify such a cataclysmic transformation of this venerable
institution.

Fundamental rights entitled to the Constitution’s protection are those
“which are, objectively, ‘deeply rooted in this [society’s] history and tradition,’
[citations], and ‘implicit in the concept of ordered liberty,’ such that ‘neither
liberty nor justice could exist if they were sacrificed, [citation].” (Washington v.
Glucksberg (1997) 521 U.S. 702, 720-721 (Glucksberg); see, e.g., Dawn D. v.
Superior Court (1998) 17 Cal.4th 932, 940.) Moreover, an assessment whether a
fundamental right or interest is at stake requires “a ‘careful description’ of the
asserted fundamental . . . interest. [Citations.]” (Glucksberg, supra, at p. 721;
Dawn D., supra, at p. 941.)

These principles are crucial restraints upon the overreaching exercise of
judicial authority in violation of the separation of powers. Courts have “ ‘always
been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered area are scarce and
open-ended.’ [Citation.] By extending constitutional protection to an asserted
right or liberty interest, we, to a great extent, place the matter outside the arena of
public debate and legislative action. We must therefore ‘exercise the utmost care
whenever we are asked to break new ground in this field,’ [citation], lest the
liberty protected by the Due Process Clause be subtly transformed into the policy
preferences” of judges. (Glucksberg, supra, 521 U.S. 702, 720.)

It is beyond dispute, as the Court of Appeal majority in this case
persuasively indicated, that there is no deeply rooted tradition of same-sex
marriage, in the nation or in this state. Precisely the opposite is true. The concept
of same-sex marriage was unknown in our distant past, and is novel in our recent
history, because the universally understood definition of marriage has been the
legal or religious union of a man and a woman.6

One state, Massachusetts, has within the past five years recognized samesex
marriage. (Goodridge, supra, 798 A.2d 941; see fn. 4, ante.) However, as the
Court of Appeal majority in our case observed, “the Massachusetts Supreme
Judicial Court’s decision establishing this right has been controversial. (See, e.g.,
Note, Civil Partnership in the United Kingdom and a Moderate Proposal for
Change in the United States (2005) 22 Ariz. J. Internat. & Comparative L. 613,
630-631 [describing the controversy engendered by Goodridge]; see also Lewis v.
Harris [(N.J.Super.Ct.App.Div. 2005) 875 A.2d 259, 274] [concluding from ‘the
strongly negative public reactions’ to Goodridge, and similar decisions from lower
courts of other states, that ‘there is not yet any public consensus favoring
recognition of same-sex marriage’].) Several other states have reacted negatively
by, for example, amending their constitutions to prohibit same-sex marriage. (See
Stein, Symposium on Abolishing Civil Marriage: An Introduction (2006)
27 Cardozo L.Rev. 1155, 1157, fn. 12 [noting, as of January 2006, ‘39 states [had]
either passed laws or amended their constitutions (or done both) to prohibit samesex
marriages, to deny recognition of same-sex marriages from other jurisdictions,
and/or to deny recognition to other types of same-sex relationships’].)”

California’s history falls squarely along this nationwide spectrum, though at
its more progressive end. As the majority itself explains, despite the Legislature’s
passage of the DPA and other statutes pioneering gay and lesbian rights,
California law has always assumed that marriage itself is between a man and a
woman. In recent years, both the Legislature and the People themselves have
enacted measures to make that assumption explicit. Under these circumstances,
there is no basis for a conclusion that same-sex marriage is a deeply rooted
California tradition.

Undaunted, the majority nonetheless claims California’s legal history as
evidence of the constitutional right it espouses. According to the majority, the
very fact that the Legislature has, over time, adopted progressive laws such as the
DPA, thereby granting many substantial rights to gays and lesbians, constitutes
“explicit official recognition” (maj. opn., ante, at pp. 68, 69) of “this state’s
current policies and conduct regarding homosexuality,” i.e., “that gay individuals
are entitled to the same legal rights and the same respect and dignity afforded all
other individuals and are protected from discrimination on the basis of their sexual
orientation.” (Maj. opn., ante, at pp. 67-68, fn. omitted.) “In light of this
recognition,” the majority concludes, “sections 1 and 7 of article I of the
California Constitution cannot properly be interpreted to withhold from gay
individuals” full equality of rights with heterosexual persons, including the right to
same-sex legal unions that are fully equivalent —including in name — to those of
opposite-sex partners. (Id., at p. 69; see also id., at pp. 81, 101-119.)

This analysis is seriously flawed. At the outset, it overlooks the most
salient facts. The Legislature has indeed granted many rights to gay and lesbian
individuals, including the right to enter same-sex legal unions with all the
substantive rights and benefits of civil marriage. As the majority elsewhere
acknowledges, however, our current statutory scheme, which includes an initiative
measure enacted by the People, specifically reserves marriage itself for oppositesex
unions. (Fam. Code, §§ 300, 308.5.) Under these circumstances, it is difficult
to see how our legislative history reflects a current community value in favor of
same-sex marriage that must now be enshrined in the Constitution.7

Of even greater concern is the majority’s mode of analysis, which places
heavy reliance on statutory law to establish a constitutional right. When a pattern
of legislation makes current community values clear, the majority seems to say,
those values can become locked into the Constitution itself.8

Of course, only the People can amend the Constitution; the Legislature has
no unilateral power to do so. (Cal. Const., art. XVIII.) However, the effect of the
majority’s reasoning is to suggest that the Legislature can accomplish such
amendment indirectly, whether it intends to do so or not, by reflecting current
community attitudes in the laws it enacts.

The notion that legislation can become “constitutionalized” is mischievous
for several reasons. As indicated above, it violates the constitutional scheme by
which only the People can amend the state’s charter of government. It abrogates
the legislative power to reconsider what the law should be as public debate on an
issue ebbs and flows. And, for that very reason, it may discourage efforts to pass
progressive laws, out of fear that such efforts will ultimately, and inadvertently,
place the issue beyond the power of legislation to affect.

As applied in this case, the majority’s analysis has also given the
Legislature, indirectly, a power it does not otherwise possess to thwart the
People’s express legislative will. As noted above, under article II, section 10,
subdivision (c) of the California Constitution, “[t]he Legislature may amend or
repeal . . . an initiative statute by another statute that becomes effective only when
approved by the electors unless the initiative statute permits amendment or repeal
without their approval.” (Italics added.) Family Code section 308.5, adopted by
Proposition 22, includes no provision allowing its unilateral repeal or amendment
by the Legislature.

According to the majority, however, the Legislature’s adoption of
progressive laws on the subject of gay and lesbian rights, including the DPA,
makes it impossible not to recognize a constitutional right to same-sex legal
unions with full equivalency to opposite-sex legal unions. This development, the
majority ultimately concludes, requires the invalidation of Family Code section
308.5. In other words, in the majority’s view, the Legislature’s own actions have,
by indirection, caused this initiative statute to be erased from the books. To say
the least, I find such a constitutional approach troubling.9

Other grounds advanced by the majority for its claim of a fundamental right
are equally unpersuasive. The majority accepts plaintiffs’ unconvincing claim that
they seek no new “right to same-sex marriage” (maj. opn., ante, at p. 51), but
simply a recognition that the well-established right to marry one’s chosen partner
is not limited to those who wish to marry persons of the opposite sex. However,
by framing the issue simply as whether the undoubted right to marry is confined to
opposite-sex couples, the majority mischaracterizes the entitlement plaintiffs
actually claim. The majority thus begs the question and violates the requirement
of “ ‘careful description’ ” that properly applies when a court is asked to break
new ground in the area of substantive due process. (Glucksberg, supra, 521 U.S.
702, 721-722.)

Though the majority insists otherwise, plaintiffs seek, and the majority
grants, a new right to same-sex marriage that only recently has been urged upon
our social and legal system. Because civil marriage is an institution historically
defined as the legal union of a man and a woman, plaintiffs could not succeed
except by convincing this court to insert in our Constitution an altered and
expanded definition of marriage — one that includes same-sex partnerships for the
first time. By accepting that invitation, the majority places this controversial issue
beyond the realm of legislative debate and substitutes its own judgment in the
matter for the considered wisdom of the People and their elected representatives.
The majority advances no persuasive reason for taking that step.

In support of its view that marriage is a constitutional entitlement without
regard for the genders of the respective partners, the majority cites the many
California and federal decisions broadly describing the basic rights of personal
autonomy and family intimacy, including the right to marry, procreate, establish a
home, and bring up children. (See maj. opn., ante, at pp. 49-65.) However, none
of the cited decisions holds, or remotely suggests, that any right to marry
recognized by the Constitution extends beyond the traditional definition of
marriage to include same-sex partnerships.

Certainly Perez v. Sharp (1948) 32 Cal.2d 711 (Perez) does not support the
majority’s expansive view. There we struck down racial restrictions on the right
of a man and a woman to marry. But nothing in Perez suggests an intent to alter
the definition of marriage as a union of opposite-sex partners. In sum, there is no
convincing basis in federal or California jurisprudence for the majority’s claim
that same-sex couples have a fundamental constitutional right to marry.10

In a footnote, the majority insists that, though same-sex couples are
included within the fundamental constitutional right to marry, the state’s absolute
bans on marriages that are incestuous (Fam. Code, § 2200; see Pen. Code, § 285),
or nonmonogamous (Pen. Code, § 281 et seq.; Fam. Code, § 2201) are not in
danger. Vaguely the majority declares that “[p]ast judicial decisions explain why
our nation’s culture has considered [incestuous and polygamous] relationships
inimical to the mutually supportive and healthy family relationships promoted by
the constitutional right to marry. [Citations.]” (Maj. opn., ante, at p. 79, fn. 52.)
Thus, the majority asserts, though a denial of same-sex marriage is no longer
justified, “the state continues to have a strong and adequate justification for
refusing to officially sanction polygamous or incestuous relationships because of
their potentially detrimental effect on a sound family environment. [Citations.]”
(Id, at pp. 79-80.)

The bans on incestuous and polygamous marriages are ancient and deeprooted,
and, as the majority suggests, they are supported by strong considerations
of social policy. Our society abhors such relationships, and the notion that our
laws could not forever prohibit them seems preposterous. Yet here, the majority
overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted
assumption that marriage is a union of partners of the opposite sex. The
majority does so by relying on its own assessment of contemporary community
values, and by inserting in our Constitution an expanded definition of the right to
marry that contravenes express statutory law.

That approach creates the opportunity for further judicial extension of this
perceived constitutional right into dangerous territory. Who can say that, in ten,
fifteen, or twenty years, an activist court might not rely on the majority’s analysis
to conclude, on the basis of a perceived evolution in community values, that the
laws prohibiting polygamous and incestuous marriages were no longer
constitutionally justified?

In no way do I equate same-sex unions with incestuous and polygamous
relationships as a matter of social policy or social acceptance. California’s
adoption of the DPA makes clear that our citizens find merit in the desires of gay
and lesbian couples for legal recognition of their committed partnerships.
Moreover, as I have said, I can foresee a time when the People might agree to
assign the label marriage itself to such unions. It is unlikely, to say the least, that
our society would ever confer such favor on incest and polygamy.

My point is that the majority’s approach has removed the sensitive issues
surrounding same-sex marriage from their proper forum — the arena of legislative
resolution — and risks opening the door to similar treatment of other, less
deserving, claims of a right to marry. By thus moving the policy debate from the
legislative process to the court, the majority engages in faulty constitutional
analysis and violates the separation of powers.

I would avoid these difficulties by confirming clearly that there is no
constitutional right to same-sex marriage. That is because marriage is, as it always
has been, the right of a woman and an unrelated man to marry each other.
From this conclusion, it follows, for substantive due process purposes, that
the marriage statutes are valid unless unreasonable or arbitrary (see, e.g.,
Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 771), and are
not subject to the strict scrutiny that applies when a statute infringes a fundamental
right or interest. As I discuss below, California’s preservation of the traditional
definition of marriage is entirely reasonable. Accordingly, I would reject
plaintiffs’ due process claim.

Besides concluding that Family Code sections 300 and 308.5 are subject to
strict scrutiny as an infringement on the fundamental state constitutional right to
marry, the majority also independently holds that such scrutiny is required under
the equal protection clause of the California Constitution. This is so, the majority
declares, because by withholding from same-sex legal unions the label that is
applied to opposite-sex legal unions, the scheme discriminates on the basis of
sexual orientation, which the majority now deems to be a suspect classification.

I find this analysis flawed at several levels. For two reasons, I would reject
plaintiffs’ equal protection claim at the threshold. And even if that were not
appropriate, I disagree that sexual orientation is a suspect classification. Hence, as
with the majority’s due process theory, I would not apply strict scrutiny, and
would uphold the statutory scheme as reasonable. I explain my conclusions.

“The general rule is that legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally related to a
legitimate state interest. [Citations.] When social or economic legislation is at
issue, the Equal Protection Clause allows the States wide latitude, [citations], and
the Constitution presumes that even improvident decisions will eventually be
rectified by the democratic processes.” (Cleburne v. Cleburne Living Center, Inc.
(1985) 473 U.S. 432, 440, italics added (Cleburne).)

“The initial inquiry in any equal protection analysis is whether persons are
‘similarly situated for purposes of the law challenged.’ [Citation.]” (In re
Lemanuel C. (2007) 41 Cal.4th 33, 47.) A statute does not violate equal protection
when it recognizes real distinctions that are pertinent to the law’s legitimate aims.
(E.g., People v. Smith (2007) 40 Cal.4th 483, 527; Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253; Coleman v. Department of Personnel Administration
(1991) 52 Cal.3d 1102, 1125; Purdy & Fitzpatrick v. State of California (1969)
71 Cal.2d 566, 578; see Cleburne, supra, 473 U.S. 432, 441.) In such cases,
judicial deference to legislative choices is consistent with “our respect for the
separation of powers.” (Cleburne, supra, at p. 441.)

Though the majority insists otherwise (see maj. opn., ante, at p. 83, fn. 54),
I agree with Justice Corrigan that same-sex couples and opposite-sex couples are
not similarly situated with respect to the valid purposes of Family Code sections
300 and 308.5. As Justice Corrigan indicates, the state has a legitimate interest in
enforcing the express legislative and popular will that the traditional definition of
marriage be preserved. Same-sex and opposite-sex couples cannot be similarly
situated for that limited purpose, precisely because the traditional definition of
marriage is a union of partners of the opposite sex.

Of course, statutory classifications do not serve legitimate state interests
when adopted for their own sake, out of animus toward a disfavored group. (E.g.,
Romer v. Evans (1996) 517 U.S. 620, 633, 634-635 (Romer); U. S. Dept. of
Agriculture v. Moreno (1973) 413 U.S. 528, 534; see Lawrence, supra, 539 U.S.
558, 582-583 (conc. opn. of O’Connor, J.); see also Cleburne, supra, 473 U.S.
432, 441.) Here, however, the majority itself expressly disclaims any suggestion
“that the current marriage provisions were enacted with an invidious intent or
purpose.” (Maj. opn., ante, at p. 119, fn. 73.) I therefore concur fully in Justice
Corrigan’s conclusion that plaintiffs’ equal protection challenge fails for this
reason alone.

I also disagree with the majority’s premise that, by assigning different
labels to same-sex and opposite-sex legal unions, the state discriminates directly
on the basis of sexual orientation. The marriage statutes are facially neutral on
that subject. They allow all persons, whether homosexual or heterosexual, to enter
into the relationship called marriage, and they do not, by their terms, prohibit any
two persons from marrying each other on the ground that one or both of the
partners is gay. (Cf. Perez, supra, 32 Cal.2d 711, 712-713 [statutes prohibited
marriage between certain partners on the basis of their respective races].)

The marriage statutes may have a disparate impact on gay and lesbian
individuals, insofar as these laws prevent such persons from marrying, by that
name, the partners they would actually choose. But, as we explained in Baluyut v.
Superior Court (1996) 12 Cal.4th 826, a facially neutral statute that merely has a
disparate effect on a particular class of persons does not violate equal protection
absent a showing the law was adopted for a discriminatory purpose. In this regard,
discriminatory purpose “ ‘implies more than intent as volition or intent as
awareness of consequences. See United Jewish Organizations v. Carey [(1977)]
430 U.S. 144, 179 (concurring opinion). It implies that the decisionmaker . . .
selected or reaffirmed a particular course of action at least in part “because of,”
not merely “in spite of,” its adverse effects upon an identifiable group.’
(Personnel Administrator of Mass. v. Feeney [(1979)] 442 U.S. [256,] 279.)”
(Baluyut, supra, at p. 837.)

There is no evidence that when the Legislature adopted Family Code
section 300, and the People adopted Family Code section 308.5, they did so
“ ‘ “because of” ’ ” its consequent adverse effect on gays and lesbians as a group.
On the contrary, it appears the legislation was simply intended to maintain an ageold
understanding of the meaning of marriage. Indeed, California’s adoption of
pioneering legislation that grants gay and lesbian couples all the substantive
incidents of marriage further dispels the notion that an invidious intent lurks in our
statutory scheme. As indicated above, the majority itself expressly disclaims any
suggestion that the laws defining marriage were passed for the purpose of
discrimination. For this reason as well, I believe our equal protection analysis
need go no further.

Even if the distinction were subject to further examination under the equal
protection clause, I disagree that strict scrutiny is the applicable standard of
review. This is because I do not agree with the majority’s decision to hold, under
current circumstances, that sexual orientation is a suspect classification.
The United States Supreme Court has never declared, for federal
constitutional purposes, that a classification based on sexual orientation is entitled
to any form of scrutiny beyond rational basis review. (See Cleburne, supra,
473 U.S. 432, 440-441 [recognizing race, alienage, and national origin as suspect
classifications requiring strict scrutiny review, and gender and illegitimacy as
quasi-suspect classifications requiring “somewhat heightened” review].)11
Moreover, as the majority concedes, its conclusion that sexual orientation is a
suspect classification subject to strict scrutiny contravenes “the great majority of
out-of-state decisions” — indeed, all but one of those cited by the majority. (Maj.
opn., ante, at p. 95, & fn. 60.)12

As the majority also notes, the issue is one of first impression in California.
I find that circumstance highly significant. Considering the current status of gays
and lesbians as citizens of 21st-century California, the majority fails to persuade
me we should now hold that they qualify, under our state Constitution, for the
extraordinary protection accorded to suspect classes.

The concept that certain identifiable groups are entitled to extra protection
under the equal protection clause stems, most basically, from the premise that
because these groups are unpopular minorities, or otherwise share a history of
insularity, persecution, and discrimination, and are politically powerless, they are
especially susceptible to continuing abuse by the majority. Laws that single out
groups in this category for different treatment are presumed to “reflect prejudice
and antipathy — a view that those in the burdened class are not as worthy or
deserving as others. For these reasons, and because such discrimination is
unlikely to be soon rectified by legislative means,” the deference normally
accorded to legislative choices does not apply. (Cleburne, supra, 473 U.S. 432,
440, italics added; see also San Antonio School District v. Rodriguez (1973)
411 U.S. 1, 28 [noting relevance, for purposes of identification as suspect class,
that group “is relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process”].)

Recognizing that the need for special constitutional protection arises from
the political impotence of an insular and disfavored group, several courts holding
that sexual orientation is not a suspect class have focused particularly on a
determination that, in contemporary times at least, the gay and lesbian community
does not lack political power. (High Tech Gays, supra, 895 F.2d 563, 574;
Conaway v. Deane, supra, 932 A.2d 571, 609-614 [same-sex marriage];
Andersen v. State, supra, 138 P.3d 963, 974-975 [same].)

In California, the political emergence of the gay and lesbian community is
particularly apparent. In this state, the progress achieved through democratic
means — progress described in detail by the majority — demonstrates that,
despite undeniable past injustice and discrimination, this group now “ ‘is
obviously able to wield political power in defense of its interests.’ ” (Maj. opn.,
ante, at p. 98, quoting the Attorney General’s brief.).

Nor are these gains so fragile and fortuitous as to require extraordinary state
constitutional protection. On the contrary, the majority itself declares that recent
decades have seen “a fundamental and dramatic transformation in this state’s
understanding and legal treatment of gay individuals and gay couples” (maj. opn.,
ante, at p. 67), whereby “California has repudiated past practices and policies that
denigrated the general character and morals of gay individuals” and now
recognizes homosexuality as “simply one of the numerous variables of our
common and diverse humanity” (ibid.). Under these circumstances, I submit, gays
and lesbians in this state currently lack the insularity, unpopularity, and
consequent political vulnerability upon which the notion of suspect classifications
is founded.

The majority insists that a determination whether a historically disfavored
group is a suspect class should not depend on the group’s current political power.
Otherwise, the majority posits, “it would be impossible to justify the numerous
decisions that continue to treat sex, race, and religion as suspect classes.” (Maj.
opn., ante, at p. 99. fn. omitted.)

I do not quarrel with those decisions. At the times suspect-class status was
first assigned to race, and in California to sex and religion, there were ample
grounds for doing so. They may well still exist in some or all of those cases.
Moreover, I do not suggest that once a group is properly found in need of
extraordinary protection, it should later be “declassified” when circumstances
change.

I only propose that, when, as here, the issue is before us as a matter of first
impression, we cannot ignore current reality. In such a case, we should consider
whether, despite a history of discrimination, a particular group remains so
unpopular, disfavored, and susceptible to majoritarian abuse that suspect-class
status is necessary to safeguard its rights. I would not draw that conclusion here.
Accordingly, I would apply the normal rational basis test to determine
whether, by granting same-sex couples all the substantive rights and benefits of
marriage, but reserving the marriage label for opposite-sex unions, California’s
laws violate the equal protection guarantee of the state Constitution. By that
standard, I find ample grounds for the balance currently struck on this issue by
both the Legislature and the People.

First, it is certainly reasonable for the Legislature, having granted same-sex
couples all substantive marital rights within its power, to assign those rights a
name other than marriage. After all, an initiative statute adopted by a 61.4 percent
popular vote, and constitutionally immune from repeal by the Legislature, defines
marriage as a union of partners of the opposite sex.

Moreover, in light of the provisions of federal law that, for purposes of
federal benefits, limit the definition of marriage to opposite-sex couples (1 U.S.C.
§ 7), California must distinguish same-sex from opposite-sex couples in
administering the numerous federal-state programs that are governed by federal
law. A separate nomenclature applicable to the family relationship of same-sex
couples undoubtedly facilitates the administration of such programs.

Most fundamentally, the People themselves cannot be considered irrational
in deciding, for the time being, that the fundamental definition of marriage, as it
has universally existed until very recently, should be preserved. As the New
Jersey Supreme Court observed, “We cannot escape the reality that the shared
societal meaning of marriage — passed down through the common law into our
statutory law — has always been the union of a man and a woman. To alter that
meaning would render a profound change in the public consciousness of a social
institution of ancient origin.” (Lewis v. Harris, supra, 908 A.2d 196, 922.)

If such a profound change in this ancient social institution is to occur, the
People and their representatives, who represent the public conscience, should have
the right, and the responsibility, to control the pace of that change through the
democratic process. Family Code sections 300 and 308.5 serve this salutary
purpose. The majority’s decision erroneously usurps it.

For all these reasons, I would affirm the judgment of the Court of Appeal.

BAXTER, J.

I CONCUR:

CHIN, J.