California Supreme Court Strikes Down Gay Marriage Ban

Constitutional Law

California Supreme Court Strikes Down Gay Marriage Ban

Posted May 15, 2008, 12:25 pm CDT

By Debra Cassens Weiss

Updated: The California Supreme Court has struck down the state's ban on gay marriages in a 4-3 ruling.

The court ruled the California Constitution gives gay couples the right to marry, making the state the second to permit such unions, the Associated Press reports. The Massachusetts Supreme Court has also found a right to same-sex marriage.

The majority opinion was written by Chief Justice Ronald George, the San Jose Mercury News reports. "The ruling marks a watershed moment in the conflict over gay marriage, with the most influential state supreme court in the nation, dominated by Republican appointees, ruling in favor of gay rights advocates in the state with the largest gay population," the story says.

Supporters of gay marriage cried and celebrated as they learned of the decision.

The California court noted in its opinion (PDF) that the state already has domestic partnership legislation that gives gay couples essentially the same rights as married couples. But the court said the difference in the official names of the relationships was suspect.

The court said a ban on interracial marriage would be unconstitutional even if a state statute had allowed such unions under an alternative name, such as "transracial union." Similarly, the domestic partnership scheme denies gay couples equal protection of the laws, the opinion said.

"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," the court said.

California voters approved the 2000 ban in a measure that defines marriage as a union between a man and a woman. The court used a strict standard of scrutiny to evaluate the law and said such scrutiny should be applied to statutes that impose differential treatment on the basis of sexual orientation.

In footnote 52 of the opinion, the court said its decision does not mean the constitutional right to marry applies to polygamous or incestuous relationships. "Past judicial decisions explain why our nation’s culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry," the opinion said.

A dissent written by Justice Marvin Baxter, joined by Justice Ming Chin, chastised the majority for its "exercise in legal jujitsu" that created a constitutional right "from whole cloth" and defeated the people's will. "Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power," he wrote.

Justice Carol Corrigan wrote a separate dissent.

George talked about how he reached his decision in an interview with the Los Angeles Times. "There are times when doing the right thing means not playing it safe," he told the newspaper.

Updated on 5/19/2008 to include George's interview with the Los Angeles Times.

Comments

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Posted by Stephen - 3 months, 2 weeks, 6 days, 14 hours, 35 minutes ago

One thing I like about constitutional law is when the court really gets it wrong the people change the courts mind by amending the constitution. This November California’s supreme court will be overruled by a constitutional amendment.
Posted by Sue - 3 months, 2 weeks, 6 days, 14 hours, 1 minute ago

I have a feeling “Li Yuan” is the former “Mike Hunt.” Only now, he’s making fun of Asians. Why can’t the ABA prevent this person from posting? Most web sites have a “report abuse” link for such posts. Since lawyers apparently are no more mature than the rest of the populace, I think we need one here as well.
Posted by JS - 3 months, 2 weeks, 6 days, 13 hours, 21 minutes ago

Sue, I agree. I would like the ABA to at the very least find out if “Li Yuan” is a genuine poster, or the former “Mike Hunt” aka “Mike Rotch”.

Substantively, it is about time that California recognized that the legal rights automatically given to adults who commit to each other by the government should be equally available to all couples, regardless of the gender combination. The government has chosen to call this marriage, but it is really a civil union (even for heterosexual couples). If a particular religious institution chooses not to recognize the union, that is completely up to that institution. For example, the Catholic church does not recognize the marriage of a couple if either one of them is divorced; the prior marriage must be annulled. That is religious freedom and perfectly acceptable for that church to make that choice. But the governmental rights that are automatically given upon the issuance and execution of a marriage license should be available to all adult couples. Good job, California!!! Hopefully the rest of the states will catch on.....
Posted by rg - 3 months, 2 weeks, 6 days, 13 hours, 6 minutes ago

I agree, Sue. The report abuse link is just above the very first post.
Posted by PSG - 3 months, 2 weeks, 6 days, 13 hours, 4 minutes ago

Thank goodness CA has seen the light. I can’t understand how the other side can argue that the case is wrong because a majority of Californians voted to deny certain rights to a minority group. Does that mean that if a majority of West Virginians voted to ban interracial marriage or re-ensalve African Americans that would be acceptable because it was the will of the majority, or that killing six million Jews during the Holocaust was OK because a majority of Germans supported it? This is one purpose of government, to protect the rights of all of us even when some want to use their religion, bigotry, position, etc. to argue that the rights they enjoy should be denied to others because they are different. Despite their bigotry, I hope Californians are enlightened enough to refrain from turning the constitution on its head by enshrining discrimination in it as the people of 26 other states have already done. Are their own marriages really so fragile they think the site of two men or women marrying will destory it? 50 years from now the country will look upon this time in our history with the same disdain we currently have for those who argued to uphold the ban on interracial marriage. Those leading the fight for unequal rights should keep this in mind.
Posted by RF - 3 months, 2 weeks, 6 days, 12 hours, 57 minutes ago

Once again, this comes up just in time to distract the voters in the national election.
Posted by RJ - 3 months, 2 weeks, 6 days, 12 hours, 50 minutes ago

The one thing that I find very disheartening is the fact that the court advanced the argument that discriminating against the right for gay and lesbian persons to “marry” is along the same line of discrimination against to the right of interracial couples marrying. I find this analogy highly offensive. Though I disagree with the courts ruling for other reasons as well, I cannot stand that the court used this analogy when being a of a particular race is CLEARLY immutable while being gay or lesbian is at best, ARGUABLY an immutable characteristic.
Posted by BK - 3 months, 2 weeks, 6 days, 12 hours, 24 minutes ago

RJ- I think you’re missing the point the court is trying to make. The Idea of “transracial union” and domestic partners are on the same side of the seperate but equal coin. For there to be true equalilty you can’t put people or groups in different categories where different law apply and different hoops must be jumped.

I take offense to the fact that although I cant be discriminated against because I’m CLEARLY black, i can be discriminated against because I’m ARGUABLY gay. Also when two women show up at city hall to get a Marriage license they are CLEARLY gay. Your argument seems to be that since gay people CAN hide they SHOULD hide in order to avoid discrimination. That is something I take offense to.
Posted by Recent Law Grad - 3 months, 2 weeks, 6 days, 12 hours, 20 minutes ago

I’d like a little less explanation on how sexual orientation is an immutable characteristic, and a little more explanation on how the “mutability” of individual characteristics should determine the legal rights taht Americans are entitled to.
Posted by Art Leonard - 3 months, 2 weeks, 6 days, 12 hours, 10 minutes ago

The court pointed out that under California state equal protection doctrine, immutabilty is not a sine qua non for “suspect classification,” in that California precedents treat religion as a “suspect classification,” and surely religion is not an immutable characteristic.

The court was not engaging in “analogies” by invoking its historic ruling in Perez v. Sharp striking down the California miscegenation law. It was instead pointing to its holding in that case that the “right to marry” is a fundamental right in California, and that in Perez it was not dealing with an alleged “right of interracial marriage” but rather with whether the state could restrict who had the “right to marry” on racial grounds.

Once Perez was invoked to establish that the “right to marry” as broadly described is a fundamental right in California, the analysis shifts to whether the state has a valid justification for denying such a right to same-sex couples.

While analogies are drawn between the civil rights movement for racial justice and the civil rights movement for LGBT rights, those analogies always acknowledge the distinctions between the two issues.
Posted by BT - 3 months, 2 weeks, 6 days, 12 hours, 5 minutes ago

BK, you are misapplying the test. Mutability is the ability to change the characteristic, not hide it from others. If a person can be homosexual or heterosexual, if it is a choice, then it is mutable. I don’t know whether it is a choice (like being a bricklayer), a genetic condition (like race), or a combination of the two (like alcoholism). All I know is that so far, the test for applying the equal protection clause has only addressed things that are a genetic condition and referred to them as immutable. I am always open to learning more and hearing arguments on both sides, but I think that is why RJ said arguably. It is absolutely fair to attack the issue and make sound arguments, but you should not take offense to RJ, it is the SCOTUS that you have issue with and showing up at city hall for anything only clearly demonstrates that they showed up at city hall. It has no effect on the status of an immutable characteristic. If it did, every white person that marched with Martin Luther King, Jr. would automatically be black. Also, I know this is a difficult issue. My comments are only meant to clarify and assist the discussion. Please don’t take offense to the things I say or think that I don’t value your thoughts and your individuality however you express it.
Posted by Chris - 3 months, 2 weeks, 6 days, 11 hours, 53 minutes ago

I have no idea why straight people even care if gay people get married. I say go ahead and let them get married. It makes no difference to me. It’s inexplicable why other straight people think it’s so bad. I suspect that they’re idiotic bible-thumpers.
Posted by Jas - 3 months, 2 weeks, 6 days, 11 hours, 34 minutes ago

...or insecure about their own sexual identity (think Ted Haggard). I agree, let them get married, how in the world is that ever going to effect me? We have such greater issues to focus on in this country rather than one when we all truly step back from it, rests on a bed of insecurities, discrimination and prejudice. Time to move into the 21st century people....
Posted by RJ - 3 months, 2 weeks, 6 days, 11 hours, 20 minutes ago

After reading the opinion, which admittedly I did not initially do, I see that the Court did not advance granting strict scrutiny review based on gay and lesbian persons being a suspect class possessing immutable characteristics that are “discreet and insular.” Therefore, I rescind my statement against the Court, the Plaintiffs made that argument. Thanks for the point A. Leonard. Thanks also to BK for bringing “clarity” to my initial argument.
Posted by Doc - 3 months, 2 weeks, 6 days, 10 hours, 59 minutes ago

This is a truly courageous decision, which could have easily been decided the other way. It’s about time the California Supreme Court re-assumed its leadership role.
Posted by AT - 3 months, 2 weeks, 6 days, 3 hours, 36 minutes ago

Perversion of English, law and human sexuality is distasteful. Strike three.
Posted by R - 3 months, 2 weeks, 2 days, 12 hours, 27 minutes ago

Under the doctrine of separation of church and state, the government should have no interest whatsoever in the concept of “marriage.” There should be recognition of civil unions between consenting adults, period. If the individuals want to get married, that’s a personal decision involving themselves and their religious institution, if they have one. This is the only true, constitutional, libertarian viewpoint. Anything else is the intrusion of government into our bedrooms.
Posted by associate - 3 months, 2 weeks, 1 day, 12 hours, 19 minutes ago

I agree, we should completely divest church from state.

Thou shalt not kill is in the 10 commandments. Therefore, it should be removed from the books.

And no one can tell me I’m wrong for killing those with whom I disagree because that would be bringing church back into the state.

If we remove all judeo-christian morals from the laws, then where do we derive our moral authority from.

Separation of church and state says that the state shall not endorse nor prohibit the free exercise of any particular religion. That’s all. It doesn’t say that gay marriage is consitutionally sactioned, not matter how hard you twist it.

This has nothing to do with the decision, just the woefully ill conceived arguments here.
Posted by BeTTY GRONER - 3 months, 2 weeks, 1 day, 1 hour, 47 minutes ago

I think someone should think of the lawyers in this case. Have you ever tried to write a separation agreement for a same-sex couple without the legislation for a civil union? It’s really unfair to us, as lawyers, who are trying to fulfill our client’s needs, when the Legislatures ignore the fact of same-sex couples.

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