A 4-3 majority of the California Supreme Court may have made the right decision in overturning the state's ban on gay marriage, but got there through what one of the dissenters called an “exercise in legal jujitsu.”

The majority opinion did not rule that same-sex couples have a constitutional right to marriage. Instead, it found a constitutional right to the name of marriage for those who already enjoy the “substantive attributes” of marriage under California's Domestic Partnership Act.

The Legislature passed the DPA by the narrowest of margins in 2003 -– three years after California voters approved Proposition 22, the ballot initiative which defined marriage as the union of a man and a woman.

The initiative statutes “are unconstitutional to the extent each statute reserves the designation of marriage exclusively to opposite sex couples and denies same-sex couples access to that designation,” Chief Justice Ronald M. George wrote for the majority.

The different labels applied to opposite-sex and same-sex unions, he said, “work[ ] a real and appreciable harm upon same-sex couples and their children” and serve no compelling state interest.

George, who, like the other members of the court, is far from a liberal firebrand, stressed that the court was not deciding “whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term).”

In a dissent, Justice Carol A. Corrigan said the majority “denigrates domestic partnership as ... 'a mark of second-class citizenship'” and

To make its case for a constitutional violation ... distorts and diminishes the historic achievements of the DPA, and the efforts of those who worked so diligently to pass it into law.

Justice Marvin R. Baxter, who dissented separately, was more caustic. “I cannot join this exercise in legal jujitsu,” he said of the majority opinion.

Jujitsu, a Japanese art of self-defense, follows the principle of using an opponent's strength and weight to disable or injure him. U.S. Supreme Court Justice Antonin Scalia coined the phrase "a remarkable feat of jurisprudential jujitsu" in one of his dissents. Kansas v. Crane, 534 U.S. 407 (2002).

According to Baxter, the majority had used the weight of laws which provide “substantial rights” to gays and lesbians against the Legislature “to create a constitutional right from whole cloth.”

“[I]t 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,” he concluded.

The DPA's author, Assemblywoman Jackie Goldberg, said in introducing the bill that it was about “simple justice” and was not a “marriage bill.” Opponents argued that the Legislature had “created 'gay marriage' by another name.”

The California Supreme Court majority has in a sense proved the opponents right -- which, as E.J. Dionne points out in the Washington Post, could be counterproductive in those states where “it will take years for a political and legal consensus in favor of gay marriage to develop.”

“In the interim,” he explains,

civil unions and domestic partnerships are the best hope homosexuals in these states have for some form of legal recognition of their relationships. The danger is that foes of civil unions will use this court's own logic to argue that such arrangements are not a political halfway house but lead inexorably to gay marriage.

By Matthew Heller
5/16/08