The Marriage Cases - Reversing the Burden of Inertia in a Pluralist Constitutional Democracy

Abstract

The California Supreme Court has replaced the New York Court of Appeals, the federal Court of Appeals for the Second Circuit, and the U.S. Supreme Court as the court at the cutting edge of many issues in American public law. The process of displacement probably began long ago, perhaps as early as 1948, when the California Supreme Court’s decision in Perez v. Sharp became the first appellate decision to recognize that state bars to interracial marriage are unconstitutional. That landmark decision has been followed by a steady stream of others. The latest such decision is In re Marriage Cases, in which a closely divided (4-3) court held that the State’s exclusion of same-sex couples from civil marriage violated the state constitution’s equal protection guarantee. Chief Justice Ronald George’s opinion for the court in the Marriage Cases was significant for three reasons. First, and most important, was the holding: the State could not constitutionally bar same-sex couples from civil marriage. California was not only the second state to recognize same-sex marriage in this way, but was the grand prize for the same-sex marriage