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 andEducation 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 conclusionsreached 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 everyright 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 civilparlance, include the legal unions of same-sex partners.
But a bare majority of this court, not satisfied with the pace of democraticchange, 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 equaltreatment 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.) [I could not distinguish location of the Italics in original post.]
History confirms the importance of the judiciary’s constitutional role as acheck 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 claimedconstitutional 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 originalConstitution, 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 toenter 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 ofjudicial 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 decision making 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 same-sex 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 same-sex 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 asevidence 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 opposite-sex 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 placesheavy 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 majoritygrants, 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 withoutregard 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 areincluded 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 non-monogamous (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 deep rooted, 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 deep rooted 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 polygamousrelationships 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 issuessurrounding 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 ofsexual 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 besustained 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 interestswhen 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 lesbianindividuals, 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 decision maker . . . 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 Codesection 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 age old 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 analysisneed 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, alien, age, 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 ofextraordinary 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 determinewhether, 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 offederal 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, thePeople 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.
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