With language and legal conclusions that could not have been stronger, the California Supreme Court granted same-sex couples access to marriage May 15.
The weddings should begin June 16 or shortly thereafter. California law contains no residence requirement, so same-sex couples from elsewhere can take advantage of the change as well.
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Outside the California Supreme Court in San Francisco on May 15 as the court issued its decision striking down California's ban on same-sex marriage as unconstitutional. Wockner News photo by Michael Petrelis,
petrelisfiles.com
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The court, in a 4-3 decision, struck down the state's opposite-sex definition of marriage as well as a 2000 voter-passed initiative ( Proposition 22 ) that further restricted marriage to opposite-sex couples.
The court said both laws were unconstitutional, citing a fundamental right to marry under the state constitution and the constitution's guarantee of equal protection under the law.
The court further determined—in a move that legal analysts said was unprecedented for a supreme court—that any discrimination based on sexual orientation is constitutionally subject to the strictest level of scrutiny by courts, which will make it much harder for any level of government to defend itself in any arena where gays, lesbians and bisexuals are not treated the same as heterosexuals.
This was accomplished by the court declaring sexual orientation to be a so-called 'suspect classification,' which means a government will have to prove it has a specific 'compelling interest,' rather than a mere 'rational basis,' for treating GLB people differently in any way.
' [ R ] etaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation [ 'domestic partnership' ] for same-sex couples may well have the effect of perpetuating a more general premise—now emphatically rejected by this state—that gay individuals and same-sex couples are in some respects 'second-class citizens' who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples,' the ruling, written by Chief Justice Ronald M. George, said. 'Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.'
The court also said: 'There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state's understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state's current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.'
The decision concluded: ' [ I ] n light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 [ Prop 22 ] can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.
'Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court.'
California's Legislature has twice passed laws opening marriage to same-sex couples but Gov. Arnold Schwarzenegger vetoed them, saying such a decision should be made by the courts or a vote of the people.
Now that the Supreme Court has spoken, Schwarzenegger issued a statement May 15 saying: 'I respect the Court's decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.'
A voter initiative to amend the state constitution to ban same-sex marriage, which would overturn the Supreme Court decision, likely will be on the California ballot in November. Anti-gay forces are believed to have turned in enough valid petition signatures to meet the required threshold, though the final determination on that has not been made.
While a simple majority of voters can amend the state constitution, it is not clear which way California voters would go on same-sex marriage in 2008, especially when confronted with such a draconian tactic as amending the constitution. There are several factors suggesting that gay people could prevail, including such things as Barack Obama drawing younger voters to the polls, John McCain not being able to inspire a large turnout by religious-right voters, the precedent of Massachusetts' 2004 legalization of same-sex marriage, Schwarzenegger's opposition to the amendment, and California's increasingly gay-friendly climate since voters last visited the issue eight years ago.
'People are so much more comfortable with this issue now,' said Shannon Minter, legal director of the National Center for Lesbian Rights and the lead lawyer for the gay side in the Supreme Court case.
Both sides in the initiative fight are gearing up for what has been called the mother of all gay rights battles.
Schwarzenegger first expressed opposition to the proposed amendment last month in San Diego, calling it 'a total waste of time.'
'First of all, I think that it would never happen in California because I think that California people are much further along with that issue,' he said. 'And, number two, I will always be there to fight against that, because it would never happen. I think we need a constitutional amendment so that foreign-born citizens can run for president, but not about gay marriage. That's a total waste of time.'
