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  • « California gay marriage reax | Main | Concurring in part, dissenting in part »

    May 15, 2008

    My report on the Calif. decision

    Posted by: Chris

    Lesbiansclerkmarriage NOTE: Here's the first draft of my report on today's California Supreme Court decision. I'll be revising and adding to it later, but it provides a nice summary of the ruling and the dissents, along with reaction and likely impacts.

    The California Supreme Court handed down a landmark victory for gay rights today, ruling on a 4-3 vote that it was unconstitutional for the state to limit marriage to opposite-sex couples only. The impact of the decision will be swift and powerful.

    Unlike Massachusetts, California has no residency requirement for marriage, meaning that in about 30 days, clerks will issue valid marriage licenses to gay couples from across the state and across the country.

    Three of the four justices in the majority were appointed by Republican governors, including Chief Justice Ronald George, who wrote the 121-page opinion. They struck down a 1977 state law that defines marriage as limited to opposite-sex couples, as well as ballot measure approved by voters in 2000 that reiterated the point.

    “In contrast to earlier times, 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,” wrote Chief Justice George, “and, more generally, that 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.”

    As a result, the majority concluded, “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

    The case before the California court was very different from those decided elsewhere because state law already provides for “domestic partnerships” for gay couples that are the equivalent of “civil unions” in the Northeast, guaranteeing essentially all the rights of marriage except for the name. The court decided today that it was unconstitutional to designate the legal union of straight couples “marriage” and that of gay couples “domestic partnerships.”

    For one thing, the majority opined, it’s unnecessary to exclude gay couples from “marriage” to protect all the rights associated with that institution for heterosexual couples. But it does do real harm to gay couples and their families, the justices concluded, because it “casts doubt on whether … same-sex couples enjoy dignity equal to that of opposite-sex couples” and “is likely to be viewed as reflecting an official view that their committed relationship are of lesser stature than the comparable relationships of opposite-sex couples.”

    Even so, the justices left open the door to one alternative approach, suggesting the Legislature could change the name of the institution itself, perhaps to distinguish it from religious marriage, so long as the new name applies to straight and gay couples alike. Like the landmark 2004 ruling by the high court in Massachusetts, today’s decision was based entirely on the state constitution and cannot be appealed to the U.S. Supreme Court.

    The decision also broke ground by being the first by a state supreme court holding that any type of legal classification based on sexual orientation, including separate institutions like marriage and domestic partnership, must be subjected to the same rigorous "strict scrutiny" as classifications based on race and gender. Even the Massachusetts Supreme Judicial Court didn't go so far, holding in its 2004 ruling the exclusion of gays from marriage lacked any "rational basis," a much more lenient standard.

    Court exceeded authority, says dissent

    Three justices dissented from the ruling, all Republican appointees. Writing for two of them, Justice Marvin Baxter said the majority overstepped their authority and should have left the decision of whether gays can marry to the Legislature and governor to decide.

    “Nothing in our [state] Constution, express or implicit, compels the majority’s startling conclusion that the age-old undestanding of marriage – an understanding recently confirmed [by the ballot measure voters approved in 2000] – is no longer valid.”

    The third dissenter, Justice Carol Corrigan, wrote separately to state her view that the California Constitution requires only that the state offer equal rights and benefits to straight and gay couples. The high courts in Vermont and New Jersey reached conclusions similar to Corrigan’s in their gay marriage decisions, and those states now recognize gay couples with “civil unions” – as do New Hampshire, Connecticut and Washington state.

    Justice Corrigan noted that California domestic partnership already meet that standard and while she personally favors full marriage for gay couples, the issue should be left to the people to decide.

    Although California Supreme Court Justices are appointed by the governor, they are required to win re-election from the voters. All seven current justices have been approved by voters subsequent to their appointment.

    Celebrations followed announcement

    Gays across the state held impromptu and organized celebrations, and among those gleeful at the decision were the legendary lesbian couple Phyllis Lyon, 83 and Del Martin, 87, who were plaintiffs in one of the lawsuits decided today.

    “We have waited more than 50 years for the opportunity to marry,” said Lyon, “We are thrilled that this day has finally come.”

    Shannon Prince Minter, the transgender Legal Director of the National Center for Lesbian Rights, argued the case before the court and said, “This is a historic and landmark day for those who value fairness and opportunity. The court’s decision today upheld the highest ideals of equality that are embodied in the California Constitution.”

    Opponents move to delay, overturn ruling

    The conservative groups that had defended the existing definition marriage quickly announced that they would ask the court to delay the implementation of its decision until November, since a ballot proposition that would amend the state’s constitution so as to oveturn today’s ruling may be on the ballot then.

    “It benefits no one to redefine marriage for three to four months,” Folsom attorney Andrew P. Pugno of ProtectMarriage.com told the Sacramento Bee.

    The Secretary of State’s office has not yet certified the petition signatures submitted for the ballot measure, but expect a huge battle for votes if the proposition does go forward.

    One of those who will speak out against changing the constitution is Republican Gov. Arnold Schwarzenegger, who has twice vetoed bills that extended marriage to same-sex couples.

    “I respect the Court’s decision and as governor, I will uphold its ruling,” he said in a statement. “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.”

    Presidential hopefuls tred lightly

    The three remaining presidential candidates all issued cautiously worded statements about today’s decision. None of them supports marriage for gay couples, although Democrat Barack Obama favors full repeal of the Defense of Marriage Act, which blocks federal recognition of marriages entered into by gay couples and allows each state to refuse to recognize them as well.

    Obama reiterated his support for civil unions with full federal recognition as well, and indicated he “respects the court’s decision.”

    New York Sen. Hillary Clinton’s views are similar except she supports repealing only the portion of DOMA concerning federal recognition. Her statement mirrored Obama’s but offered no opinion at all about today’s ruling itself.

    The gay marriage issue puts Republican John McCain in a political bind. Social conservatives are angry that he voted against and spoke in opposition to a federal marriage amendment, though his reason was that the issue should be left to the states. One prominent conservative website, Belief.net, argued that the California decision offered McCain “an opportunity to make common cause with the Christian Right,” by reversing his position on a federal amendment.

    McCain’s position on the amendment has Log Cabin Republicans, the gay GOP group, optimistic about him as the party’s nominee, but his campaign reaction steered clear of the issue.

    “John McCain supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona,” said spokesman Tucker Bounds. “John McCain doesn’t believe judges should be making these decisions.”

    Bounds’ reference to Arizona was McCain’s vocal support for a ballot measure two years ago that would have amended the state’s constitution to ban not only gay marriage but civil unions and even limited domestic partnerships as well. The amendment remains the only gay marriage ban ever rejected by voters.

    The marriage ban expected on the November ballot in California, along with another in the crucial swing state of Florida, may offer the McCain and Republicans with a vehicle to motivate turnout among dispirited conservatives, much as President Bush and his chief strategist Karl Rove used the issue as a “wedge” in Ohio and other states in 2004.

    (Photo of lesbian couples in San Francisco City Hall today, making appointments for marriage licenses, via Associated Press)

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    Comments

    1. Andoni on May 16, 2008 1:53:40 AM:

      An interesting way around the ballot initiative that the religious right is trying to pass to undo the Court's decision would be for the Legislature to opt for Plan B from the court's decision. That option is for the state to set up an entirely new institution (?civil unions) for both opposite sex and same sex couples.

      In California "marriage" could then be ceded to the churches and the new secular or official government term would be civil unions. Because the ballot initiative only refers to marriage, it would not apply to the new civil union law.

      The only problem with this solution is that all the federal benefits of marriage go with the word "marriage." Of course, if a couple (now only heteros, but some day when DOMA is repealed - gays too) want the federal benefits, they would go to city hall and first get the civil union......and then find a church that agrees to give them a marriage certificate. And now because marriage is a religious ceremony, the First Amendment to the Constitution forbids the state (ballot initiative) from telling churches what they can do, so same sex marriages will be able to be performed in churches that wish to do so. The ballot initiative could not be forced on the churches for a religious ceremony.

      I also assume that if California officially says it is out of the marriage business, then the federal government will have to rely on church marriages for federal benefits.

      Do you think the religious right would be happy if marriages were left to the churches?

    1. Strict Scrutiny on May 16, 2008 2:48:25 AM:

      Andoni-

      This idea you and Chris advance (i.e. re-naming what we now call marriage as something else and reserving "marriage" for churches) is creative, but something I doubt will ever happen.

      First, we're not going to get anywhere taking "marriage" away from straight people. One of the principal arguments advanced by the gay petitioners in the CA marriage cases was that the word "marriage" means something. There is a dignitary quality to this particular word that is lacking in other formulations which convey the same idea (e.g. civil unions or domestic partnerships). So, I don't think my straight neighbors would take kindly to a new law that said they couldn't get "married" unless it happened in a church or other holy place.

      And what about atheists? I guess they couldn't get married anymore. Or would they simply have to violate their solemn beliefs and get married in a holy place they do not respect. And, by the way, which religions would be authorized to conduct marriage ceremonies? Would gay-friendly churches be able to perform same-sex marriages?

      Anyway you cut it, this idea is fraught with problems. Someone is always going to get the short end of the stick. When you have multiple designations for the same institution, you're always going to have some kind of "separate but equal" issue. We need one institution for everyone, regardless of sexual orientation.


    1. Chris on May 16, 2008 3:36:48 AM:

      Andoni, I had hoped the California Supreme Court would stop short of ordering marriage now and leave it to the Legislature to call the joint-institution what it's called. But now that they've ordered outright marriage, I would hold back on that suggestion. Doing so now leaves opponents too much wiggle room. Better to keep it as a backup if the ballot measure succeeds in November.

      Strict Scrutiny (what a prescient name for this!): I don't read the ruling the same way. The crux of it was that having "marriage" for straights and "something else" for gays conveyed second-class treatment and less dignity for gay couples. Calling the joint-institution something else assuages those concerns.

      If you're straight neighbors are troubled enough, then they can vote against the November ballot measure so that everyone can marry. As for atheists, the other 49 states would be more than happy to marry them if the word is so important (a bit ironic given how fraught it is with religious significance).

    1. Andoni on May 16, 2008 12:27:14 PM:

      Yeah, I agree that my end-run suggestion around the likely ballot initiative by reclassifying everything as civil unions is an impractical solution at this stage. However, I proposed it an intellectual exercise --- a way to get around the initiative, to moot it, or to negate it if it passes. Furthermore, I just thought of another reason why it might be interesting. If straights thought they were about to lose the word marriage, they would realize first hand how important the word is.......and possibly agree with the Supreme that on this issue separate is not equal. Then they might be more likely to vote against the ballot initiative.....imagining what is might be like to be in our shoes for an instance.

      I don't think such an effort to reclassify everything will go anywhere.

    1. Andoni on May 16, 2008 12:28:24 PM:

      Yeah, I agree that my end-run suggestion around the likely ballot initiative by reclassifying everything as civil unions is an impractical solution at this stage. However, I proposed it an intellectual exercise --- a way to get around the initiative, to moot it, or to negate it if it passes. Furthermore, I just thought of another reason why it might be interesting. If straights thought they were about to lose the word marriage, they would realize first hand how important the word is.......and possibly agree with the Supreme that on this issue separate is not equal. Then they might be more likely to vote against the ballot initiative.....imagining what is might be like to be in our shoes for an instance.

      I don't think such an effort to reclassify everything will go anywhere.

    1. Amicus on May 16, 2008 2:21:19 PM:

      Do you think the religious right would be happy if marriages were left to the churches?

      No way. At least one of those wackos would sue the state for taking away his fundamental right to marry.

      Separately, I cannot help but feel that a good hedge would have been to have a second amendment on the ballot. At a minimum, 10% of the voters are confused at all times, and with polls showing 50/50, that kind of confusion is more than enough to achieve victory ...

      A bit of lack of foresight, planning, or resources, I guess.

      Oh well. Something tells me that this is going to work out in CA. Just a hunch.

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