May 15, 2008

California here we come

Posted by: Chris

I noted late Tuesday that the California Supreme Court will issue its long-awaited decision later today on gay marriage, and -- as Andoni pointed out earlier -- the impact will likely be huge.

I've been closely following lawsuits challenging the constitutionality of hetero-only marriage laws since the mid-90s, when the Hawaii and Alaska high courts were set to strike them down until the voters preempted them with amendments to the constitutions in those states.

Since those early days, it's been crystal clear to me that laws that limit marriage to opposite-sex couples are unconstitutional -- on federal and state grounds -- based on the same principles of equality under the law established by the U.S. Supreme Court in Loving vs. Virginia, the landmark 1967 case striking down laws limiting marriage to those of the same race. In a decade of subsequent litigation, conservatives have yet to offer any convincing state interest for excluding same-sex couples from such a fundamental right as the freedom to marry. Whatever justifications they offer -- child-bearing, child-rearing, "traditional values," etc. -- either make no logical sense or boil down to moral disapproval of homosexuality, which is invidious and unconstitutional discrimination.

All that said, we cannot blind ourselves to the horrific backlash on gay marriage in the last decade. Dozens of states have written gay marriage bans into their constitutions and for a while there was a genuine risk that the Congress might do so as well. That's unthinkable since the Democrats took over the House and Senate and will solidify their control in November. But already in California, conservatives are perilously close to putting an amendment initiative on the ballot that would overrule whatever good the state's high court may do later today.

That's why, in one of my first posts on this blog, I applauded the attempt by the New Jersey Supreme Court to split the baby: requiring that gay and straight couples be afforded all the same legal rights and responsibilities, but leaving it up to the popularly elected branches to devise exactly how.

I'm hoping that's what we see later today. The California Supreme Court could strike down the ballot measure passed in 2000 -- Proposition 22 -- which defined marriage in state law as between a man and a woman, but then leave it to the the Legislature to determine how best to define the identical rights to be extended to straight and gay couples alike.

Unlike New Jersey, which had a weak domestic partnership law, California's D.P. rights are already the equivalent to marriage. But the California court could one-up the New Jersey court and affirm that "separate is never equal." Straight and gay couples are entitled to access the same institution with the same name, whether it's "marriage," "civil unions," "domestic partnerships," or "civil partnerships" like they have in the U.K.

The California Legislature has already twice passed legislation that would open marriage up to gay couples, only to be vetoed by Gov. Arnold Schwarzenegger, who said he wanted to defer to the court ruling expected today. If the Legislature again passes a law opening marriage up to everyone, it'll be in the hands of the Governator. Should he veto, then the only alternative would be to create a new institution, called whatever, for gay and straight couples both.

My bet is that he would sign the gay marriage law, and that democratic process would give the result more legitimacy than if the court simply rules it so.

Tags: California Supreme Court, gay marriage