Metropolitan News-Enterprise


Friday, May 16, 2008


Page 1


State Supreme Court Strikes Down Ban on Same-Sex Marriage


By STEVEN M. ELLIS, Staff Writer


The California Supreme Court ruled yesterday that the state Constitution grants same-sex couples a right to marry, and held that state legislative and initiative measures limiting marriage to opposite-sex couples violate same-sex couples’ state constitutional rights.

Concluding 4-3 that allowing opposite-sex couples to marry while only granting same-sex couples access to the novel and less-recognized status of domestic partnership improperly infringes same-sex couples’ rights to marry and to the equal protection of the laws, the court struck down the statutory scheme limiting marriage to opposite-sex couples and directed state officials to permit same-sex couples to marry once the decision becomes final in 29 days.

Nevertheless, the challenge for gay rights advocates is not over, as the Secretary of State is expected to rule by the end of June whether a coalition of religious and social conservative groups who are attempting to place a measure to amend the state Constitution to ban gay marriage have gathered enough signatures to qualify it on the November ballot. Similar to measures enacted in 26 other states, the proposed amendment would supersede the court’s decision if approved by voters.

California currently offers same-sex couples who register as domestic partners the same legal rights and responsibilities as spouses, including the right to divorce and to sue for child support. However, Family Code Sec. 300, which was legislatively enacted, and Sec. 308.5, which was enacted after voters approved Proposition 22 in 2000, specifically limit the official designation of a relationship as a “marriage” to opposite-sex couples.

Question Not Settled

After the Supreme Court held in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055  that San Francisco officials who issued marriage licenses to same-sex couples had acted unlawfully in the absence of a judicial determination that the statutes, by limiting marriage to opposite-sex couples, were unconstitutional, the City and County of San Francisco and a number of same-sex couples filed suits seeking such a determination.

In April 2005, San Francisco Superior Court Judge Richard Kramer their request, but the state and other parties supporting the statutes appealed, and Div. Three of the First District Court of Appeal reversed, 2-1.

On review by the Supreme Court, Chief Justice Ronald George wrote for the majority that same-sex couples had a fundamental right to marriage under the state Constitution, and that the statutes violated this right.

Marriage Right Examined

Examining the nature and the scope of the right, he observed that even though civil marriage had historically only been afforded to opposite-sex couples, the state Supreme Court’s 1948 decision in Perez v. Sharp 32 Cal.2d 711 that state statutes prohibiting interracial marriage were inconsistent with the fundamental constitutional right to marry, even though they had existed since the state’s founding, demonstrated that “history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee.” 

George explained that the core substantive rights embodied in the right to marry “include, most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage,” and opined 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.”

He acknowledged that domestic partnership legislation afforded most of the substantive elements embodied in the constitutional right, but concluded that the statutes impinged on same-sex couples’ right to marry because their reservation of the designation “marriage” to only opposite-sex couples threatened to deny same-sex couples equal dignity and respect.

George then agreed with challengers who argued that assigning a different name to the official family relationship of same-sex couples violated the state Equal Protection Clause.

He opined that the statutes were subject to strict scrutiny because they discriminated on the basis of sexual orientation, a characteristic he said was a “suspect classification” under equal protection analysis, and because the different treatment impinged upon a same-sex couple’s fundamental interest in having their family relationship accorded equal respect and dignity.

George concluded that the statutes did not meet this standard because the interest asserted by the state—retaining the traditional and well-established definition of marriage—could not be properly viewed as a compelling state interest, or as necessary to serve such an interest, particularly where the limitation was not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples; where permitting same-sex couples access to the designation of marriage would not alter the substantive nature of the legal institution; and where affording same-sex couples the opportunity to obtain the designation of marriage would not impinge upon anyone else’s religious freedom.

“No religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs,” he wrote.

Justices Joyce Kennard, Kathryn Werdegar and Carlos Moreno joined George in his opinion.

Kennard wrote a separate concurring opinion in which she reiterated her position that the court should have reserved the question of the validity of the marriages performed in San Francisco until after it ruled on the constitutionality of the marriage statutes, but said that the constitutionality of the statutes was an issue “particularly appropriate for decision by this court, rather than a social or political issue inappropriate for judicial consideration.”

She explained that “[t]he architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.”

Justice Marvin Baxter wrote in a concurring and dissenting opinion that he agreed with several of the majority’s conclusions, but he said that the majority’s reliance on the Legislature’s adoption of civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage effectively gave the Legislature indirect power to amend the Constitution and repeal an initiative statute.

Joined by Justice Ming Chin, Baxter also disagreed with the majority’s equal protection analysis, and, applying the rational basis test, concluded that ample grounds existed to uphold the assignment of a name other than marriage to the relationships of same-sex couples.

Justice Carol Corrigan similarly authored a concurring and dissenting opinion in which she wrote that the majority had exceeded the bounds of its authority in invalidating the initiative and disagreed with the majority’s conclusion, opining that it improperly denigrated domestic partnership by describing it “as ‘only a novel alternative designation…constituting significantly unequal treatment’ and ‘a mark of second-class citizenship.’ ”

She concluded:

“If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.” 

The case is In re Marriage Cases, 08 S.O.S. 2834.


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