ON THURSDAY, by a 4–3 vote of the state Supreme Court, California followed Massachusetts and became the second state in which same-sex couples can tie the knot as tightly as straight couples can. The Massachusetts opinion of 2003 will always have the fame of a first mover. In it, the state high court found that the exclusion of gays from marriage deprived them of both liberty and equality rights protected under the state constitution. The California Supreme Court came to the same conclusion, but in terms that have more legal bite and greater political consequence.
The legal difference between the two opinions lies in the so-called “rational basis” review used by the Massachusetts court and the “strict scrutiny” deployed by the California Court.