California Supreme Court Considers Right to Gay Marriage

Constitutional Law

California Supreme Court Considers Right to Gay Marriage

Posted Mar 5, 2008, 12:43 pm CDT
By Debra Cassens Weiss

Three justices on the California Supreme Court didn’t give reporters much of an indication about their opinions during oral arguments on the gay marriage issue yesterday, leaving observers unsure whether the seven-member court would find a constitutional right to marry.

Several California justices suggested that the state’s domestic partnership law gave gay couples the same rights as heterosexuals, the Los Angeles Times reports. It might be best to leave the question "to the democratic process," said Justice Carol Corrigan.

But "several" does not a majority make. According to the newspaper’s count, three justices strongly indicated they would uphold the gay-marriage ban, one indicated the ban should be overturned, and three appeared critical of both sides. The case is In re Marriage Cases.

During the arguments, the court’s 1948 decision striking down a ban on interracial marriage loomed large, the New York Times reports.

Chief Justice Ronald George quoted from the decision, Perez v. Sharp, three times during the arguments. “The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” he said, reading from the opinion.

The California Supreme Court was the first state supreme court to find a constitutional right to interracial marriage when it issued the decision, which predated the U.S. Supreme Court’s similar decision, Loving v. Virginia, by 19 years.

The Massachusetts Supreme Court is the only state that has found a right to same-sex marriages. The Connecticut Supreme Court is also considering the issue and is expected to rule soon.

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