Issue:  Vol. 48 / No. 7 / 15 February 2018

Online extra: Friends of the Court: The constitution and
the pursuit of happiness


Professor Joseph Grodin
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"Considering the history of prejudice and discrimination against gays and lesbians, I think the court should engage in a serious and meaningful inquiry on whether there is any justification for the state denying same-sex couples the right to marry," asserted Professor Joseph Grodin. "The court should focus on our California Constitution, which provides several provisions – including the right to privacy, liberty and the pursuit of happiness – that are directly relevant in this case."

Today, Marriage Equality USA features Grodin's amicus brief, along with two other amicus briefs filed by five bar associations and 17 leading constitutional lawyers that provide various options of constitutional analysis that would justify ending the ban on marriage equality. This column concludes our daily series where MEUSA, partnering with the Bay Area Reporter, has highlighted each of the 30 amicus "friend of the court" briefs submitted by hundreds of supportive organizations, professional associations, and religious institutions filed before the California Supreme Court in support of the freedom to marry.

"The California Constitution takes seriously and protects personal autonomy, personhood, and the right to arrange one's social, romantic, and personal living arrangements as one pleases." – Professor Grodin's amicus brief

Grodin, a former California Supreme Court justice, noted that many courts have analyzed the constitutionality of marriage statutes under the "strict scrutiny" versus the "rational standard" basis. While Grodin believes that if the court were to apply this analysis, it should consider the marriage statute based on the strict scrutiny standard, he also asserted that there are other methods of analysis that the Court could apply.

There are several provisions within the California Constitution that would support the petitioners� claims. First, the state has created the status of marriage and by excluding same-sex couples from this status claim, social isolation results from this exclusion and mandates that the equal protection clause protect same-sex couples from that discrimination.

Second, the constitution's privileges and immunities clause seems apt as "the state has chosen to grant the 'privilege' of marital status to a class of citizens (those who which to marry a person of the opposite-sex)" and withhold this privilege from same-sex couples.

Third, and most relevant, the constitution asserts, "all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Grodin stated that the right to privacy involves informational privacy and personal autonomy and the right to happiness and liberty also should involve being free to "arrange one's social, romantic and personal living arrangements as one pleases."

"Now, I'm not suggesting the court rule in favor of marriage equality based on a right to happiness," stated Grodin. "What I am suggesting, however, is that by reviewing of these provisions collectively, specifically the right of privacy, liberty and happiness, the existence of those provisions within our California Constitution suggests that people should be able to fulfill themselves, to make their own choices of lifestyle and association, and that directly relates to the right to marry the person of one's choice."

In addition, Grodin asserted that the status of marriage should be characterized as a "fundamental right, but even without that characterization it is undeniably an interest of great importance, central to the lives of most people, and implicating strong state constitutional claims of autonomy and the right to happiness." Whether or not gay men and lesbians are considered a "suspect class," they have and continue to face discrimination and this discrimination in part resulted in the current marriage statute being restricted to heterosexual couples. Collectively, these factors require more than just a rational basis review.

Furthermore, Grodin illustrates that other states have used varying modes of analysis when examining statutes that exclude same-sex couples from the status of marriage. At the core of these differing analyses, they all come to the same conclusion that "where the state acts in a way as to deprive a suspect class of persons the opportunity to obtain the kind of personal fulfillment that other citizens enjoy, and where there is a reason to believe that the interests asserted by the deprived class may not adequately be protected by the majoritarian process, courts have an obligation to engage in a meaningful inquiry into the justifications asserted in support of the state's action. Such an inquiry, in this case, should lead to the court's" ending the exclusion of marriage to same-sex couples.

Grodin's brief concludes, "The history of constitutional law is one of growth and change. When the U.S. Supreme Court decided Brown v. Board of Education, they were seen as judicial activists. But we must remember that whenever a court calls a statute unconstitutional, it is standing up for the principles in the constitution. And if that wasn't essential to our system of government, there would be no point to have judicial review at all."

"By proclaiming that equal treatment is required and by disclaiming the existence of any conceivably relevant difference between same-sex and heterosexual couples, California statutory law has put to rest any possibility that the marriage exclusion is animated by any legitimate public policy." – Bar Associations� amicus brief

The Los Angeles County Bar Association, San Francisco Trial Lawyers Association, California Women's Lawyers, Women Lawyers Association of Los Angeles, and the Beverly Hills Bar Association, joined together to file an amicus brief in which they agree "the right to marry a person of one's choice is a fundamental constitutional right; that sexual orientation should be deemed a suspect class subject to strict scrutiny review; and that no legitimate state interest ... justifies barring same-sex couples from marrying." In addition, the brief stated that there is no rational basis that supports restricting marriage to be only between opposite-sex couples.

In examining the justification for the Domestic Partnership Act, the bar associations' amicus brief concludes, "California public policy expressly commands equal treatment of same-sex and heterosexual couples; it expressly disclaims the existence of any rational or legally relevant difference that would permit continued discrimination." Segregating same-sex and opposite-sex couples into separate classifications of domestic partnerships and civil marriages can only be "founded upon pertinent and real differences, as distinguished from irrelevant and artificial ones ... mere difference is not enough."

Furthermore, the bar associations' amicus brief asserted that the "interests advanced by domestic partnerships are identical to those advance by marriage," therefore there is no rational basis to support marriage for opposite-sex couples but deny that "status and honored place in society to same-sex couples."

Finally, Proposition 22, which restricts out-of-state marriages to only be between a man and a woman, perpetuates the same discriminatory classification and just because that classification exists, doesn't make it constitutional or exempt from constitutional scrutiny.

The bar associations' amicus brief concludes that this "discrimination is unconstitutional. It denies same-sex couples a fundamental right that is central to our society's fabric. It does so without any support of any rationale that is consistent with Californian public policy ... (therefore) the court should strike the gender limitation from the marriage laws."

"In the application of a constitution ... our contemplation cannot be only of what has been but of what may be." – Constitutional Law Professors' amicus brief

An amicus brief filed by 17 leading constitutional law professors, including former Stanford Law School Dean Kathleen Sullivan, challenges the state and governor's assertion that this court should maintain a static view in any constitutional interpretation because the current exclusion of marriage for same-sex couples is based on tradition. Instead, this brief asserts that if the courts maintained a static view regarding constitutional interpretation, there would never have been decisions like Brown v. Board of Education (school desegregation) or Lawrence v. Texas (right for gay people to engage in consensual intimate relationships). As part of their decision in Lawrence v. Texas, the United States Supreme Court ruled "as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

This amicus brief asserts "there is little question ... that the equal protection clause (in this constitution) ... would not always have been interpreted by the courts to forbid discrimination against gay people. And yet, for nearly 30 years, this court has interpreted those principles to forbid much discrimination on the basis of sexual orientation."

It continues, "Contemporary understanding that gay men and lesbians enjoy equal rights of citizenship in California is confirmed by a series of laws, executive orders and local ordinances that have prohibited discrimination against gay people within this state ... Interpreting California's Constitution in line with this contemporary understanding would be entirely consistent with a tradition of constitutional jurisprudence tracing back to Chief Justice Marshall."

The constitutional law professors' amicus brief states since California has created the institution of civil marriage, it is required to provide equal access to that institution and the current exclusion of gay and lesbian couples from marriage violates "both due process and equal protection; the former because the right to marry is a form of liberty and the latter because the restriction treats lesbians and gay men differently from straight individuals." This court relied on both due process and equal protection claims when it ended the ban on interracial marriage in Perez v. Sharp; a similar ruling in this case would not involve the creation of a new right, but instead would constitute a modest approach to ensuring "the public privilege of marriage be equally open to all loving and responsible unrelated adults on an equal-opportunity basis."

These three amicus briefs can be found online:

Lambda Legal PDF 1, Lambda Legal PDF 2, and Lambda Legal PDF 3.

Professor Joseph Grodin is the John F. Digardi Distinguished Professor of Law at Hastings School of Law. While he retired from full-time teaching in May 2005, he continues to teach part-time and to do arbitration and mediation work. In 1979, Grodin was appointed associate justice of the California Court of Appeal; in 1981, he was elevated to presiding justice of that court, and in 1982 was appointed associate justice of the California Supreme Court, a position he held until January 1987. For more information, go to

Los Angeles County Bar Association

San Francisco Trial Lawyers Association

California Women Lawyers

Women Lawyers Association of Los Angeles

Beverly Hills Bar Association

Marriage Equality USA is a national, nonprofit organization created to secure legally recognized civil marriage equality without regard to gender identity or sexual orientation at the federal and state level. For more information, go to

Previous articles:

Online series looks at legal arguments in marriage case

Friends of the Court: Briefs by black groups cite equality

Friends of the Court: Cities, counties push for change

Friends of the Court: Lawmakers' goal is equality

Friends of the Court: Decisions are not popularity contests

Friends of the Court: DPs fall short on privacy

Friends of the Court: Asian groups back gay marriage

Friends of the Court: Religious believers and doubters share faith in gay marriage

Friends of the Court: Family lawyers and doctors examine marriage case

Friends of Court: Women's groups weigh in on marriage case

Friends of the Court: Business boon with gay marriage

Friends of the Court: Almost 30 civil rights groups support gay marriage

Friends of the Court: Professional groups weigh in on gay marriage

Friends of the Court: Unfair prejudice must never prevail

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