法律英语：105 Gay Marriage

by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction³. Further, I do not intend to create an attorney-client relationship with any listener.

On May 15, 2008, in a 4-3 decision authored by Chief Justice Ronald George, the California Supreme⁴ Court struck down California’s marriage laws that permitted marriage only for couples that consisted of a man and a woman. Several listeners have written in with questions about the opinion, its effect, and its significance. For example:

1. What exactly did [the Court] decide and why? What is strict scrutiny⁵?
2. Do other states have to recognize a California gay marriage? 3. Will this case affect other states?

Today I will give a brief history of the litigation and answer these questions.

But first, a word from today’s sponsor, GoToMyPC:

Procedural History.

In February 2004, at the direction of Mayor Gavin Newsom, San Francisco began offering marriage licenses⁶ to couples regardless of gender⁷. About 4,000 same-sex couples were married before the California Supreme Court deemed those licenses invalid⁸ on the ground that a mayor does not have the authority to change state law, but reserved the issue of whether the marriage laws were generally constitutional. In 2005, Judge Richard Kramer, struck down California’s marriage statute¹⁰. The Court of Appeal reversed that decision by a 2-1 vote.

Issues:

There were several issues facing the Court. One major issue was the definition of “marriage” for constitutional purposes. In legalese, the issue was whether or not the marriage laws infringed¹¹ on a “fundamental right” under the California constitution. Generally, a fundamental right is one that is deeply rooted in society’s history and tradition, and implicit¹² in the concept of ordered liberty such that neither liberty nor justice could exist if they were sacrificed. Several past cases have recognized that the right to marry a person of one’s choice is a fundamental right. But, the Court had to decide exactly what the scope of this fundamental right included. That is, does the fundamental right to marry include the right to marry a person of one’s choice of the opposite gender only, or any person of one’s choice regardless of gender?

The Court held that the right extended to marry a person of one’s choice regardless of gender. The Court based this decision on several past decisions that confronted the definition of fundamental rights, and how courts have viewed them. For example, in Lawrence v. Texas, the U.S. Supreme Court struck down a law that prohibited homosexual sodomy. The right to engage in intimate relationships had been recognized as a fundamental right, but the state of Texas argued that this fundamental right did not include the right to engage in homosexual intimate relationships. The U.S. Supreme Court rejected the logic¹³, holding that the fundamental right at issue could not be so narrowly defined as the right to homosexual intimacy¹⁴, but more broadly to include the right to intimacy with another person.

In the gay marriage case, the California Supreme Court used the same logic to conclude that the historical definition of marriage as between a man and a woman was too narrow, and the fundamental right at issue included the right to marry any person of one’s choice. One of the parties in the case argued that the reason marriage was to be understood as between a man and a woman was because marriage is intended to produce children and families. The Court rejected this argument on the grounds that a married couple is not required to have children, the state cannot deny a marriage license² to an infertile¹⁵ couple, and that any couple can adopt anyway.

The next main issue to be decided¹⁶ was whether the marriage statutes¹⁷ violated the Equal Protection Clause of the California constitution, which generally requires the state to treat all groups of people equally.

Before determining whether there was a violation¹⁸, the Court had to decide what standard of review to use. A standard of review refers to the level of scrutiny that a Court will use to examine a statute, and two are generally used in California Equal Protection Clause cases: rational basis and strict scrutiny. If a court applies rational basis, then a law is presumed valid⁹ and upheld so long as the distinctions drawn¹⁹ by a challenged statute bear some rational relationship to a conceivable legitimate²⁰ state interest. Under strict scrutiny, the law is presumed invalid, and the state bears the burden of establishing not only that it has a compelling interest which justifies²¹ the law but that the distinctions drawn by the law are necessary to further its purpose. The point is, it is much easier to get a law struck down if you can convince a court to apply strict scrutiny.

In determining what level of scrutiny applies, the court looks at what distinction the law draws, and whether the group is a “suspect classification,” which refers generally to a group that requires extra protection under the law. In past decisions, courts had determined²² that gender, religion, and race were suspect classifications. So, a law that gave women a legal right, but not men, would be subject to strict scrutiny.

The Court determined that the marriage statutes made a distinction based on sexual orientation²³, but no court had ever decided that sexual orientation should be a classification that requires additional protection. The Court held that sexual orientation is a classification that requires additional protection due to the past discrimination against homosexuals, the fact that sexual orientation is a core part of personhood, and that sexuality has no bearing on whether an individual can be a productive member of society.

This conclusion, that sexual orientation is a suspect classification triggering strict scrutiny, is perhaps the most legally important part of the decision. The California Supreme Court is the first in the country to so hold.

Having concluded that strict scrutiny was proper, the Court held that the marriage statutes did not pass the difficult standard. In practice, most laws that are subject to strict scrutiny are struck down.

So, what does all this legal mumbo jumbo mean? It means that California must now offer marriage licenses to all couples who qualify, regardless of the gender of the two members of the couple. It also means that any California law that makes a distinction on the basis of sexuality is subject to strict scrutiny, and is more likely to be struck down.

The most pressing question I have received is whether other states must now recognize a California gay marriage – the answer is probably no. No state is required to recognize all marriages from another state. Most states choose to do so with respect to heterosexual marriages. Massachusetts has granted marriage licenses to gay couples since 2003, and states generally (exceptions being New York, New Mexico and Rhode Island) have not been forced to recognize that union simply because Massachusetts does. It also does not mean that gay married couples will be recognized for federal purposes, as the federal Defense²⁴ of Marriage Act already limits marriage to one man and one woman. As to the effect of this decision in other states, we will have to wait and see. The California Supreme Court is not binding²⁵ authority on other state courts, but some courts might be persuaded by the logic in the opinion.

The other pressing question is whether this decision can be overturned. Well, the U.S. Supreme Court cannot likely overturn the decision because the California Supreme Court decided the issue under the California constitution, and the California Supreme Court is the highest arbiter²⁶ of issues of California law. However, California has a ballot²⁷ initiative system under which an amendment²⁸ to the California Constitution can be passed that expressly indicates that marriage is reserved for opposite-sex couples. If the amendment passes, then the opinion would effectively be reversed. The Court in this case struck down statutes because they violated the constitution. If the constitution were amended²⁹, then the old marriage statutes would be most likely constitutional. Californians will simply have to wait until November to see what happens at the ballot box.

I would like to end by noting that this brief episode does not cover everything contained in the 172-page opinion issued by the Court, but only touches upon some of the highlights. If you are interested in some very strong legal arguments proposed by both sides of this issue, please read the entire opinion.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful³⁰ Life.

You can send questions and comments to.........or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 license   

n.执照，许可证，特许；v.许可，特许

参考例句：

• The foreign guest has a license on the person.这个外国客人随身携带执照。
• The driver was arrested for having false license plates on his car.司机由于使用假车牌而被捕。

3 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

4 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

5 scrutiny   

n.详细检查，仔细观察

参考例句：

• His work looks all right,but it will not bear scrutiny.他的工作似乎很好，但是经不起仔细检查。
• Few wives in their forties can weather such a scrutiny.很少年过四十的妻子经得起这么仔细的观察。

6 licenses   

n.执照( license的名词复数 )v.批准，许可，颁发执照( license的第三人称单数 )

参考例句：

• Drivers have ten days' grace to renew their licenses. 驾驶员更换执照有10天的宽限期。 来自《现代汉英综合大词典》
• Jewish firms couldn't get import or export licenses or raw materials. 犹太人的企业得不到进出口许可证或原料。 来自辞典例句

7 gender   

n.（生理上的）性，（名词、代词等的）性

参考例句：

• French differs from English in having gender for all nouns.法语不同于英语，所有的名词都有性。
• Women are sometimes denied opportunities solely because of their gender.妇女有时仅仅因为性别而无法获得种种机会。

8 invalid   

n.病人，伤残人；adj.有病的，伤残的；无效的

参考例句：

• He will visit an invalid.他将要去看望一个病人。
• A passport that is out of date is invalid.护照过期是无效的。

9 valid   

adj.有确实根据的；有效的；正当的，合法的

参考例句：

• His claim to own the house is valid.他主张对此屋的所有权有效。
• Do you have valid reasons for your absence?你的缺席有正当理由吗？

10 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

11 infringed   

v.违反（规章等）( infringe的过去式和过去分词 )；侵犯（某人的权利）；侵害（某人的自由、权益等）

参考例句：

• Wherever the troops went, they never infringed on the people's interests. 大军过处，秋毫无犯。 来自《现代汉英综合大词典》
• He was arrested on a charge of having infringed the Election Law. 他因被指控触犯选举法而被拘捕。 来自《现代汉英综合大词典》

12 implicit   

a.暗示的，含蓄的，不明晰的，绝对的

参考例句：

• A soldier must give implicit obedience to his officers. 士兵必须绝对服从他的长官。
• Her silence gave implicit consent. 她的沉默表示默许。

13 logic   

n.逻辑(学)；逻辑性

参考例句：

• What sort of logic is that?这是什么逻辑？
• I don't follow the logic of your argument.我不明白你的论点逻辑性何在。

14 intimacy   

n.熟悉，亲密，密切关系，亲昵的言行

参考例句：

• His claims to an intimacy with the President are somewhat exaggerated.他声称自己与总统关系密切，这有点言过其实。
• I wish there were a rule book for intimacy.我希望能有个关于亲密的规则。

15 infertile   

adj.不孕的；不肥沃的，贫瘠的

参考例句：

• Plants can't grow well in the infertile land.在贫瘠的土地上庄稼长不好。
• Nobody is willing to till this infertile land.这块薄田没有人愿意耕种。

16 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

17 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

18 violation   

n.违反(行为)，违背(行为)，侵犯

参考例句：

• He roared that was a violation of the rules.他大声说，那是违反规则的。
• He was fined 200 dollars for violation of traffic regulation.他因违反交通规则被罚款200美元。

19 drawn   

v.拖，拉，拔出；adj.憔悴的，紧张的

参考例句：

• All the characters in the story are drawn from life.故事中的所有人物都取材于生活。
• Her gaze was drawn irresistibly to the scene outside.她的目光禁不住被外面的风景所吸引。

20 legitimate   

adj.合法的，合理的，合乎逻辑的；v.使合法

参考例句：

• Sickness is a legitimate reason for asking for leave.生病是请假的一个正当的理由。
• That's a perfectly legitimate fear.怀有这种恐惧完全在情理之中。

21 justifies   

证明…有理( justify的第三人称单数 )； 为…辩护； 对…作出解释； 为…辩解（或辩护）

参考例句：

• Their frequency of use both justifies and requires the memorization. 频繁的使用需要记忆，也促进了记忆。 来自About Face 3交互设计精髓
• In my judgement the present end justifies the means. 照我的意见，只要目的正当，手段是可以不计较的。

22 determined   

adj.坚定的；有决心的

参考例句：

• I have determined on going to Tibet after graduation.我已决定毕业后去西藏。
• He determined to view the rooms behind the office.他决定查看一下办公室后面的房间。

23 orientation   

n.方向，目标；熟悉，适应，情况介绍

参考例句：

• Children need some orientation when they go to school.小孩子上学时需要适应。
• The traveller found his orientation with the aid of a good map.旅行者借助一幅好地图得知自己的方向。

24 defense   

n.防御，保卫；[pl.]防务工事；辩护，答辩

参考例句：

• The accused has the right to defense.被告人有权获得辩护。
• The war has impacted the area with military and defense workers.战争使那个地区挤满了军队和防御工程人员。

25 binding   

有约束力的，有效的，应遵守的

参考例句：

• The contract was not signed and has no binding force. 合同没有签署因而没有约束力。
• Both sides have agreed that the arbitration will be binding. 双方都赞同仲裁具有约束力。

26 arbiter   

n.仲裁人，公断人

参考例句：

• Andrew was the arbiter of the disagreement.安德鲁是那场纠纷的仲裁人。
• Experiment is the final arbiter in science.实验是科学的最后仲裁者。

27 ballot   

n.（不记名）投票，投票总数，投票权；vi.投票

参考例句：

• The members have demanded a ballot.会员们要求投票表决。
• The union said they will ballot members on whether to strike.工会称他们将要求会员投票表决是否罢工。

28 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

29 Amended   

adj. 修正的 动词amend的过去式和过去分词

参考例句：

• He asked to see the amended version. 他要求看修订本。
• He amended his speech by making some additions and deletions. 他对讲稿作了些增删修改。

30 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。