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Beyond Homophobia » Friends of the (California) Court: A Footnote

May 15, 2008

Friends of the (California) Court: A Footnote

Posted at 4:48 pm (Pacific Time)

Leading up to today’s historic decision striking down state laws that prohibit same-sex couples from marrying, the California Supreme Court received 45 amicus curiae (friend of the court) briefs. The briefs were filed by diverse sources, including California cities, elected officials, law professors, and religious, business, and professional organizations.

It’s often difficult to know what impact such briefs have on judicial decision making. As a contributor to briefs filed by the American Psychological Association (APA) in other cases, I’ve sometimes wondered whether they were even read by the Court.

In today’s written opinion, however, the California Court majority characterized the briefs they’d received as “extensively researched and well-written” and acknowledged having “benefited from the considerable assistance provided by these amicus curiae briefs in analyzing the significant issues presented by this case” (Note 10, pp. 22-23).

While many of the briefs may have influenced the justices’ thinking in a variety of ways, three of them were specifically referenced by the Court.

Two of those briefs were filed by opponents of marriage equality.

  • The Court briefly noted an argument raised by the Pacific Justice Institute, which it opted not to consider (Note 9, p. 21).
  • The Court responded to a passage in the brief filed by Pat Robertson’s American Center for Law & Justice, which cited the philosopher John Rawls to argue that recognizing a constitutional right to marry for same-sex couples will devalue the institution and will have detrimental effects on children. The Court responded that, elsewhere in the same work, Rawls explicitly argued that if gay and lesbian “rights and duties are consistent with orderly family life and the education of children, they are, ceteris paribus [all other things being equal], fully admissible” (Note 51, pp. 78-79).

The third amicus brief explicitly cited by the Court was filed by the American Psychological Association, American Psychiatric Association, National Association of Social Workers, and some of their California state affiliates. (In the interests of full disclosure, it’s appropriate to acknowledge that I played a role in writing this brief.)

The APA brief was quoted in reference to the Court’s decision that, while California marriage laws don’t constitute discrimination on the basis of gender or sex, they do unlawfully discriminate on the basis of sexual orientation:

In our view, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would choose to marry a person of their own sex or gender.[59]   A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation (pp. 94-95).

Here’s Footnote 59:

[59] As explained in the amicus curiae brief filed by a number of leading mental health organizations, including the American Psychological Association and the American Psychiatric Association:

“Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex, gender identity, or age. This perspective is incomplete because sexual orientation is always defined in relational terms and necessarily involves relationships with other individuals. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is by acting — or desiring to act — with another person that individuals express their heterosexuality, homosexuality, or bisexuality. . . .

Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. In addition to sexual behavior, these bonds encompass nonsexual physical affection between partners, shared goals and values, mutual support, and ongoing commitment.

Consequently, sexual orientation is not merely a personal characteristic that can be defined in isolation. Rather, one’s sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity.”

We made this point to explain that sexual orientation is inherently about relationships. As we documented in the brief (and as I’ve discussed in earlier posts), empirical research indicates that same-sex committed relationships don’t differ from heterosexual committed relationships in their essential psychosocial qualities, their capacity for long-term commitment, and the context they provide for rearing healthy and well-adjusted children.

Thus, the basis for according same-sex couples a legal status different from that of heterosexual couples ultimately boils down to the partners’ sexual orientation and the State’s role in stigmatizing sexual minorities.

The California justices agreed and forcefully rejected sexual orientation discrimination as unconstitutional, not only in the realm of marriage but in all areas. In fact, the Court ruled that instances of sexual orientation discrimination should be subjected to strict judicial scrutiny — the same standard that is applied in cases of racial and gender discrimination.

Of course, the story doesn’t end here. Court rulings typically don’t go into effect until 30 days after they’re issued. And opponents of marriage equality plan to ask the Court to place its decision on hold until the November election, when they hope to qualify a ballot proposition that would amend the state constitution to bar same-sex couples from legally marrying.

Today, however, many Californians — gay, lesbian, bisexual, and heterosexual — are celebrating a tremendous, long sought victory. And, no doubt, many are thinking of themselves as friends of this Court.

Copyright © 2008 by Gregory M. Herek. All rights reserved.

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