Thursday, May 15, 2008

CA: state Supreme Court says state must allow gays equal rights to marry


The California State Supreme Court has ruled 4-3 that the state cannot deny same-sex couples the right to marry. The Opinion is available in PDF format on Findlaw here. There probably will be other copies of the opinion on the web shortly.

The logic refers to the California state constitution and seems to be based on equal protection. The judges ruled that sexual orientation "does not constitute a legitimate basis upon which to deny or withhold legal rights.” Furthermore they wrote “We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, 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,” according to chief justice Ronald George. The justices asserted a fundamental right to form a family unit. The dissenting justices made arguments about separation of powers.

The justices ruled that domestic partnership was not the full legal equivalent of marriage. (That was exactly the point of Chris Crain's "piddle, twiddle, resolve" essay in The Washington Blade in March 2004). The ruling overturned a 2000 California law (Proposition 22) passed by voters "strengthening" a 1978 law limiting marriage to one man and one woman (1978 was the year that the Briggs initiative trying to ban gay teachers failed).

A particularly important quote appears at the end of p. 11. "Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation 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 and opposite-sex couples." Notice that the judges refer to individuals, even those not in relationships, as indirectly affected by the marriage ban as potentially exposed to making the "sacrifices" for the benefit of heterosexual families. My goodness, that's the heart of my 1997 book and subsequent writings. (Maybe they read them. Individual speech does matter.) (On Monday, May 19, on p A17 of The Washington Post, progressive columnist E.J. Dionne would note that previously welcome attempts to offer gays civil unions were now viewed as inherently discriminatory and eventually inviting "second class" status in the eyes of the rest of society. Given our national history, this notion should not be taken lightly.)

The CNN story is here.

Six of the seven judges are Republican. In this regard, the ruling could be interesting, and pressure mainstream Republicans and more moderate candidates (possibly John McCain) into recognizing equal rights, and this could even be beneficial in increasing political pressure to get Congress to repeal “don’t ask don’t tell” for the military. Log Cabin will be pleased. Today LCR (http://online.logcabin.org/) has a front page story “Log Cabin Republicans applaud California Supreme Court’s opinion on marriage equality; Republican Gov. Arnold Schwarzenegger says he will uphold the ruling.” Mayor Gavin Newsome of San Francisco (himself married and straight and “Irish Catholic”) was celebrating.

The ruling may fuel extreme right wing claims that a federal constitutional amendment is necessary, as the nation’s largest state, in addition to Massachusetts, will recognize gay marriage in 30 days, unless the justices agree to a stay. Furthermore, conservatives could try to force a referendum amendment vote overturning today's ruling in California in the November election (as happened in Virginia in 2006 with Marshall-Newman). Lisa Leff has an article about the future course of such attempts in the AP May 16, link here. It is said that such an amendment would be immune to appeal to the US Supreme Court since it is a state law, but then there was Colorado's Amendment 2 in the 1990s.

On the other hand, the ruling may undercut “collectivistic” abstract notions about “the sanctity of marriage” as meaning that the ability of heterosexuals to experience it to its fullest (in lifelong active monogamy of the “Song of Solomon” type) is undercut by the knowledge that it is now a bit more private in nature and does not allow collective demands to demand psychological tribute from those who do not marry and have children in a heterosexual manner.

It has also been reported that the California ruling may allow out-of-state gay couples to get married by "gay tourism." The Massachusetts ruling in 2004 applied only to in-state same-sex couples.

Update: July 21

Philip Chandler has an interesting analysis dated June 4 in his Townhall blog "Gay Equality and the Law" here.

Picture: not in CA: Charles St. in Baltimore

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