Yesterday, by a vote of 2-1, a panel of the Court of Appeals upheld California’s law that restricts marriage to a man and a woman, denying this right to gay and lesbian couples. As supporters of marriage equality, this was a huge disappointment – but it’s far from being the final word. City Attorney Dennis Herrera will appeal to the state Supreme Court, who will make a ruling within the next two years. And while the appellate court failed to recognize the rights of same-sex couples, the legal arguments made (and not made) in Justice McGuiness’ 64-page majority opinion, as well as in the concurring and dissenting opinions, offer some hope – and potentially give gay rights advocates a new opening that could help them ultimately prevail.

Don’t get me wrong – it was a terrible decision. Let’s start with the bad news, and there’s plenty of it.

While the court acknowledged marriage to be a Constitutional right, they argued that a gay man can still marry a woman and a lesbian can still marry a man. However absurd, this argument has been made before – and at least they conceded that the right to marry also includes the right to marry the person of your choice. But there are limits to such a right, they said, and then quoted conservative Law Professor Cass Sunstein: “people do not have the right to marry their dog, their aunt, June 29, a rose petal or a sunny day (24).”

Only traditional rights are fundamental, said the Court. California does not have to legalize gay marriage because (a) it would be tantamount to creating new rights, and (b) “same-sex marriage has never existed before (30).” But if a Court could never declare a new right to exist, Roe v. Wade would never have happened. And for 127 years, California marriage law was gender-neutral. Only in 1977 when the state legislature realized that the Family Code was unclear and that a same-sex couple could get married that they amended it from “two persons” to “a man and a woman.”

Same-sex marriage, said the Court, can still be legalized through the political process – if the legislature and the Governor choose to act. But when Arnold Schwarzenegger vetoed such a bill last year, he said that we should just let the Courts decide. The state has a legitimate interest to follow the will of the people, said the Court, who in March 2000 passed Proposition 22 by a majority vote. But one of the Court’s important tasks has always been to protect the constitutional rights of minorities – especially when the “will of the people” refuses to grant it to them.

The state has a legitimate interest to maintain traditional marriage, said the Court, because it now has a separate domestic partnership system where gay and lesbian couples can have “the same rights, protections and benefits as spouses (52).” But the decision glossed over the tangible and intangible benefits that full marriage equality provides. For example, domestic partnerships do not cover Social Security benefits, federal taxes, or immigration issues. And if a domestic partner in California moves to another the state, their relationship may not be recognized elsewhere.

So why is there a silver lining in this decision? Two reasons.

First, the Court did not argue that the purpose of marriage is to have children, and so the state need not extend it to same-sex couples who cannot procreate. While that may not sound like much, it is one of the primary legal arguments made against same-sex marriage. In New York, for example, the Supreme Court effectively used it to deny the right for couples there. The majority opinion was silent on this point, and Justice Klein’s dissent eloquently explained why it makes no sense.

Second, and more importantly, is the issue around suspect classes. When a law discriminates against a group of people, the court must first determine if the group is a “suspect class” like race. If so, the law must pass “strict scrutiny” – it is presumed to be unconstitutional unless the government has a compelling interest and the law is narrowly tailored through the least restrictive means. If not, the law must only have a “rational basis” – it is presumed to be constitutional unless those challenging it can prove it is not rationally related to any legitimate government purpose. Whether a group is a “suspect class” almost always determines if a law that discriminates against them will be upheld.

Sexual orientation, unlike race, has never been considered a suspect class – and this decision was no exception. But here, the court actually defined the three necessary elements of a suspect class, and concluded that sexual orientation satisfied two of them. Only because they said that sexual orientation is not an “immutable trait” (i.e., something that cannot be changed) did they refuse to recognize it as a suspect class (44).

But the Court left open the possibility that factual evidence would change their mind. In her concurring opinion, Justice Parrilli made it crystal clear. “Although this record does not contain findings of fact nor evidence sufficient to support a conclusion one way or another,” she wrote, “if being gay or lesbian is an immutable trait or biologically determined, then we must conclude classification based on that status which deprives such persons of legitimate rights is suspect (70).”

It’s not hard to prove that sexual orientation is immutable. In 1973, the American Psychological Association stopped considering it to be a “disease,” and in 1994, mention of homosexuality completely disappeared from its manual of “mental disorders.” Even the Catholic Church believes that being gay is not something you can change – they just tell young gay boys to repress all their feelings and live a life of celibacy.

Advocates of same-sex marriage have often gone to court and argued that denying full marriage equality is “gender discrimination.” It’s a good argument, but the reason for making it is partially strategic. The courts have ruled gender to be a suspect class, but not sexual orientation. If sexual orientation were deemed to be a suspect class, the struggle for full dignity and marriage equality would be greatly enhanced.

Paul Hogarth received his J.D. at Golden Gate University Law School in May, and is awaiting the results of the July 2006 California Bar Exam. In the summer of 2005, he worked for Equality California in their Marriage Equality Campaign. Send feedback to paul@thclinic.org