The status of same-sex
marriage in California known for its large
gay communities and generally liberal political climate, has been a political issue since at
least the late 1970s.
On May 15, 2008, the Supreme Court of California overturned the ban on same-sex marriage. The
four-to-three decision made California the
second state, behind Massachusetts,
to allow full marriage rights for same-sex partners. Barring a
last-minute injunction, marriage licenses will be issued to same-sex couples
starting on June 14, 2008.
California had already permitted domestic-partner registration, a right similar
to civil
unions found in other states. This grants "same-sex couples all
state-level rights and obligations of marriage — in areas such as inheritance,
income tax, insurance and hospital visitation" but does not apply to
"federal-level rights of marriage that cannot be granted by states."
California
Supreme Court overturns gay marriage ban
In a 4-3 decision, the justices rule that
people have a fundamental 'right to marry' the person of their choice and that
gender restrictions violate the state Constitution's equal protection guarantee
By Maura Dolan
Los Angeles Times Staff Writer
May 16, 2008
SAN FRANCISCO -- — The California Supreme Court struck down the state's ban on
same-sex marriage Thursday in a broadly worded decision that would invalidate
virtually any law that discriminates on the basis of sexual orientation.
The 4-3 ruling declared that the state Constitution protects a fundamental
"right to marry" that extends equally to same-sex couples. It tossed
a highly emotional issue into the election year while opening the way for tens
of thousands of gay people to wed in California,
starting as early as mid-June.
The majority opinion, by Chief Justice Ronald M. George, declared that any law
that discriminates on the basis of sexual orientation will from this point on
be constitutionally suspect in California
in the same way as laws that discriminate by race or gender, making the state's
high court the first in the nation to adopt such a stringent standard.
The decision was a bold surprise from a moderately conservative,
Republican-dominated court that legal scholars have long dubbed
"cautious," and experts said it was likely to influence other courts
around the country.
But the scope of the court's decision could be thrown into question by an
initiative already heading toward the November ballot. The initiative would
amend the state Constitution to prohibit same-sex unions.
The campaign over that measure began within minutes of the decision. The
state's Catholic bishops and other opponents of same-sex marriage denounced the
court's ruling. But Gov. Arnold Schwarzenegger, who previously has vetoed two
bills in favor of gay marriage, issued a statement saying he
"respects" the decision and "will not support an amendment to
the constitution that would overturn" it.
The ruling was greeted with loud cheering and whooping when it was released at
the high court's headquarters here Thursday morning. About 100 people lined up
outside to purchase copies of the decision for $10 apiece. Some people bought
10 to 15 copies, calling it a historic document. One man said he planned to
give them out as Christmas presents.
Gay groups planned celebrations up and down the state.
"I can finally say I will be able to marry John, the man that I
love," said Stuart Gaffney, one of the plaintiffs in the case, referring
to his partner of 21 years, John Lewis. "Today is the happiest and most
romantic day of our lives."
Conservative and religious-affiliated groups denounced the decision and pledged
to bring enough voters to the polls in November to overturn it. Mathew Staver,
founder of Liberty Counsel, called the decision "outrageous" and
"nonsense."
"No matter how you stretch California's
Constitution, you cannot find anywhere in its text, its history or tradition
that now, after so many years, it magically protects what most societies
condemn," Staver said.
The decision came after high courts in New York,
Washington and New Jersey refused to extend marriage rights
to gay couples. Only Massachusetts'
top court has ruled in favor of permitting gays to wed.
The court's ruling repeatedly invoked the words "respect and dignity"
and framed the marriage question as one that deeply affected not just couples
but also their children. California
has more than 100,000 households headed by gay couples, about a quarter with
children, according to 2000 census data.
"Our state now recognizes that an individual's capacity to establish a
loving and long-term committed relationship with another person and responsibly
to care for and raise children does not depend upon the individual's sexual
orientation," George wrote for the majority. "An individual's sexual
orientation -- like a person's race or gender -- does not constitute a
legitimate basis upon which to deny or withhold legal rights."
Many gay Californians said that even the state's broadly worded domestic
partnership law provided only a second-class substitute for marriage. The court
agreed.
Giving a different name, such as "domestic partnership," to the
"official family relationship" of same-sex couples imposes
"appreciable harm" both on the couples and their children, the court
said.
The distinction might cast "doubt on whether the official family
relationship of same-sex couples enjoys dignity equal to that of opposite-sex
couples," George wrote, joined by Justices Joyce L. Kennard, Kathryn
Mickle Werdegar and Carlos R. Moreno. All but Moreno were appointed by Republican
governors. George was appointed by Gov. Pete Wilson in 1991.
The ruling cited a 60-year-old precedent that struck down a ban on interracial
marriage in California.
The three dissenting justices argued that it was up to the electorate or the
Legislature to decide whether gays should be permitted to marry.
In 2000, 61% of California voters approved a
ballot measure, Proposition 22, that said "only marriage between a man and
a woman is valid and recognized in California."
Since then, the Legislature has passed one of the strongest domestic
partnership laws in the country, giving registered same-sex couples most of the
rights of married people.
"In my view, California
should allow our gay and lesbian neighbors to call their unions marriage,"
Justice Carol A. Corrigan wrote in the first sentence of her dissent.
"But I, and this court, must acknowledge that a majority of Californians
hold a different view and have explicitly said so by their vote. This court can
overrule a vote of the people only if the Constitution compels us to do so.
Here, the Constitution does not."
Justice Marvin R. Baxter, joined by Justice Ming W. Chin, said the ruling
"creates the opportunity for further judicial extension of this perceived
constitutional right into dangerous territory."
"Who can say that in 10, 15 or 20 years, an activist court might not rely
on the majority's analysis to conclude, on the basis of a perceived evolution
in community values, that the laws prohibiting polygamous and incestuous
marriages were no longer constitutionally justified?" Baxter wrote.
The decision takes effect in 30 days. Gay couples would then be permitted to
marry in California,
even if they do not live in the state, gay rights lawyers said. Under federal
law, however, other states would not have to recognize those marriages as
valid. And same-sex couples would remain ineligible for certain federal
benefits, including Social Security benefits for spouses and joint filing for
income taxes.
Lawyers on both sides of the debate said they were uncertain how a victory for
the proposed November initiative -- which both sides predict will qualify for
the ballot -- would affect gay couples who marry during the next several
months.
University of Santa Clara law professor Gerald Uelmen,
who has closely followed the state high court for decades, said he was
"blown away" and "very surprised" by the ruling.
"The court is exerting some leadership here, and I think it needs to be
said that it is a new role for the court," Uelmen said.
"This has not been a court that has been willing to stick its neck out and
lead the way on cutting-edge issues like this that involve such strong
political feelings."
Uelmen said the court's vote probably reflected the fact that a growing number
of Californians favor marriage for gay couples. He noted the case attracted a
record number of friend-of-the-court briefs, most of them in favor of same-sex
marriage.
Although critics of the ruling, including the dissenters, argued the court
should have waited for the voters to decide the question of same-sex marriage,
"the majority is not always supposed to have its way" in
constitutional democracies, said University of Pennsylvania constitutional law
professor Kermit Roosevelt, one of many legal scholars who weighed in on the
case Thursday.
Roosevelt predicted more states would follow California's example and that the U.S.
Supreme Court would eventually rule in favor of same-sex marriage.
"That decision will come at the end of a process that is now just
beginning," Roosevelt said. He predicted
it would follow the pattern of state courts that struck down laws banning
interracial marriage decades ago.
The decision followed several recent rulings by the state high court
recognizing the rights of same-sex parents, including those not biologically
related to their children. The children in those families figured prominently
in the court's reasoning in those cases.
The road to Thursday's ruling began with San
Francisco's highly publicized same-sex weddings, which
in 2004 helped spur a conservative backlash in an election year and a national
dialogue over gay rights.
Several states later passed constitutional amendments banning gay marriage, and
same-sex marriage became an issue in the race for president.
After a month of jubilant gay weddings here, the California Supreme Court
intervened and ordered the city to stop issuing licenses to same-sex couples.
The state high court later invalidated the licenses, saying the city should
have waited for a judicial ruling before acting.
The plan by San Francisco Mayor Gavin Newsom, City Atty. Dennis Herrera and gay
rights lawyers to challenge state law by marrying same-sex couples was
carefully drawn.
City officials chose the first couples to wed, hoping their long unions and
sympathetic stories would put a face on same-sex marriage that courts would
find difficult to reject. The city also decided to begin the weddings on a day
when courts were closed to deprive opponents of quick legal intervention. One
of the first couples to wed has since separated.
The long parade of weddings at City Hall -- across the street from the
California Supreme Court -- provided a dramatic backdrop for the gay rights
debate.
As the issue moved into the high court, Brad Sears, executive director of the
Williams Institute at UCLA's law school, which examines sexual orientation and
the law, said the state's broad domestic partner law had undercut the
traditional argument that children were better off being raised by opposite-sex
parents.
"Taking those issues off the table, which the domestic partners act did,
might have made this an easier case for everyone," Sears said. Once the
state recognized the right of gays to rear children, the fight for same-sex
marriage was shaped as "the right to have a family" and the ruling
became "about family being protected."
The court concluded that giving gays a separate institution -- domestic
partnership -- "marked gays and lesbians as second-class citizens,"
Sears said.
The Massachusetts high court ruling that permitted gays there to marry did not
give sexual orientation the same kind of constitutional protection that
Thursday's decision did, nor was the Massachusetts ruling as explicit in
stating that marriage licenses must be given to same-sex couples in the
immediate future, legal analysts said.
Sears said recent polls show that Californians are divided over same-sex
marriage. Forty-three percent of Californians supported gay marriage in a Field
Poll taken a year ago.
He added that the issue was likely to affect the political debate even outside California.
"It is going to give some new teeth to an issue that was losing its
potency in terms of being a wedge issue," Sears said.
