Be Sure to Wear Some Flowers in Your Hair
A San Francisco superior court judge has ruled that the state's ban on same-sex marriage is unconstitutional. Several wire services' court people, by the way, clearly need to get busted back to J-school, because after scanning half a dozen news articles, I had to read the opinion itself to discover: (1) the relevant constitution is California's rather than the federal Constitution, and (2) the court issued a two-tiered ruling: It applied "rational basis" scrutiny and found that the denial of marriage rights to same-sex couples lacked a rational basis, but also held that, in fact, the stricter scrutiny applicable to cases in which the government discriminates according to "suspect classes" (in this case, gender) applied, making the discrimination a fortiori impermissible, since the state would need a compelling interest, never mind a rational basis, to pass muster.
Interestingly, as wtih the federal Constitution, the state constitution's privileges and immunities clause seems to have become inert, even though it seems pretty relevant:
A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.
Now, glancing at the relevant part of California's constitution, I don't see any terribly significant difference in its equal protection language that would've led to a different ruling had the case been brought under the federal Constitution. But my understanding (someone correct me if this is wrong) is that since it's not a ruling under the federal Equal Protection Clause, the California Supreme Court is the last stop for this one. Which is probably a good thing. Unlike my friend James Joyner, I can't get terribly upset that "gay marriage has been enacted by judicial fiat rather than the democratic process." That's what constitutional rights guarantees are for: To flip the bird at the democratic process when majorities don't feel like treating minorities fairly and equally. But at this stage, a push for a federal decision on gay marriage would likely reinvigorate the loathesome Federal Marriage Amendment, which would be thoroughly counterproductive.
Anyway, at least as interesting as the substance of the ruling here is the standard of scrutiny applied. The ruling that discrimination against gays lacks a rational basis in the marriage context has implications only in that context, so far as I can tell. That discrimination involving gay relationships is to be treated as (prima facie invidious) gender based discrimination demanding a compelling state interest seems to be of broader importance.
Update: This Brian Doherty column from way back in nineteen-dickety-seven is actually pretty relevant on the state-vs-federal constitution front.
