Middle Manager

In May 2008, when Chief Justice Ronald M. George led the state Supreme Court in legalizing same-sex marriage, he wrote that the California Constitution declares the right of every individual "to establish a legally recognized family with the person of one's choice." The legislative option of domestic partnership for gays and lesbians, he added, amounted to "second-class citizenship." (In re Marriage Cases, 43 Cal. 4th 757 (2008).)

A year later, when George led his court in upholding a voter-approved ban on marriage between people of the same sex, he described the newly enacted Proposition 8 as a "narrow and limited exception" to the civil rights of equality and privacy. Domestic partners, he contended, receive "the same substantive core benefits" as opposite-sex couples (Strauss v. Horton, 46 Cal. 4th 364 (2009)).

Back in 1998 George wrote an opinion that allowed the Boy Scouts to exclude gays and atheists from membership, on the grounds that the organization was not a "business establishment" regulated by California's Unruh Civil Rights Act (Curran v. Mt. Diablo Council of Boy Scouts, 17 Cal. 4th 670 (1998)).

Yet three years earlier, he'd concluded that a private country club was a business establishment, and consequently required by Unruh to admit women as members (Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995)).

The counterpoint in these cases doesn't suggest that the chief justice has been inconsistent or self-contradictory—there are legitimate differences in both sets of cases. But it does illustrate that his work in 19 years on the state Supreme Court, and 14 years as its chief, doesn't fit easily into a simple category. Even labels as general as "moderate" or "pragmatic" fall short.

Consider George's first major ruling as chief justice, a 1997 decision overturning a statute that required parental consent for minors' abortions. The law was supported by Gov. Pete Wilson, who just the previous year had appointed George to the court. Threatened with organized opposition by anti-abortion groups, the chief assigned the case to himself, penned the 4-3 ruling (Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997)), and then campaigned aggressively in 1998 to retain his office, winning a 75 percent majority at the polls.

The Lungren case involved issues of privacy and gender equality, both of which are principles George has championed. Another 1997 opinion barred a city, on privacy grounds, from randomly administering drug tests to its employees (Loder v. City of Glendale, 14 Cal. 4th 846 (1997)). And a decade after George's 1995 ruling on gender bias at country clubs, he authored a decision that allowed female state prison workers to bring a harassment case against a warden who allegedly had promoted other women with whom he'd had affairs—sending a message, George wrote, that female employees were "viewed by management as 'sexual playthings.' " (Miller v. Dep't of Corrections, 36 Cal. 4th 446, 451 (2005).)

The same spirit animated George's 2008 opinion upholding same-sex marriage, probably the case for which he'll be best remembered. Writing for a 4-3 majority, he compared the decision to landmarks in 1948, when the California court became the first to strike down a state's ban on interracial marriage, and in 1971, when the court ruled that the state constitution guaranteed equal rights for women. It was time to recognize, George said, that discrimination based on sexual orientation is rooted in outdated and unfounded stereotypes—and that, as an earlier court observed, "we have never been confined to historic notions of equality." (43 Cal. 4th at 821, quoting People v. Belous, 71 Cal. 2d 954 (1969).)

His May 2009 opinion upholding Prop. 8, then, was not so much a repudiation of equality as it was George's manifesto of the limits of the judicial role—to define rights within the boundaries of the law, while deferring to the people's prerogative to narrow those boundaries by amending the constitution. Soon afterward, in a pair of high-profile speeches, he urged Californians to rein in the practice of "government by initiative," a plea that seemed more likely to appeal to editorial writers than the public at large.

The Strauss decision also exemplified George as an institutionally minded justice, aware of his court's strengths and vulnerabilities and constantly seeking its proper leverage point in the constitutional balance of powers.

He has generally been deferential to the political branches. One ruling upheld the authority of the Legislature and the governor, rather than his own court, to appoint members to the State Bar Court (Obrien v. Jones, 23 Cal. 4th 40 (2000)). Another decision creatively interpreted the legislative record to conclude that lawmakers had ratified Gov. Arnold Schwarzenegger's decision to furlough state employees (Prof'l Engr's in Cal. Gov't v. Schwarzenegger, 50 Cal. 4th 989 (2010)).

George also required the governor to show only "some evidence" to justify vetoing paroles for life-term prisoners (In re Rosenkrantz, 29 Cal. 4th 616 (2002)). Yet he later wrote an opinion finding that Schwarzenegger had failed to meet that standard by relying solely on the facts of the prisoner's crime (In re Lawrence, 44 Cal. 4th 1181 (2008)), prompting a slew of lower-court rulings against both the governor and the parole board. And after Wilson's politically charged veto of the State Bar's 1997 dues bill crippled the organization and froze attorney disciplinary proceedings, it was George—over the governor's objections—who led his court in ordering an emergency $173 fee on lawyers that resuscitated the bar (In re Attorney Discipline System, 19 Cal. 4th 582 (1998)).

Above all, the chief justice has been protective of his court's reputation, as he showed in a 2000 clash over Proposition 209, the ballot initiative that outlawed preferences based on race and sex in state and local programs. In a case about San Jose's requirement that city contractors make "outreach" efforts to firms owned by women or minorities, Justice Janice Rogers Brown's majority opinion assailed race-based affirmative action as the historical descendant of slavery and segregation and praised voters for restoring the principle of equal opportunity (Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537 (2000)). George, who usually occupies the court's ideological center and seldom dissents, wrote what he labeled a concurring and dissenting opinion in that case; it agreed with Brown that the San Jose program was invalid but rejected both her reasoning and her rhetoric. The court's majority was guilty of a "serious distortion of history" and did a "grave disservice to the sincerely held views of a significant segment of our populace," George wrote. His opinion had no practical effect on the parties or the law, but it kept the chief justice and his court in their customary position: firmly in the middle of the legal debate.

Bob Egelko is legal affairs reporter for the San Francisco Chronicle.

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