California Supreme Court Strikes Bans on Same-Sex Marriage

By Robert Barnes and Ashley Surdin
Washington Post Staff Writers
Friday, May 16, 2008

The California Supreme Court ruled yesterday that gays have a constitutional right to marry, striking down state laws that forbade it, in a decision that is likely to reenergize the election-year debate over same-sex marriages and gay rights.

The 4 to 3 ruling opened the way for the nation's most populous state to join Massachusetts in allowing partners of the same sex to marry. The court's order becomes final in 30 days, and it told county clerks and registrars to prepare.

Marriage is a "basic civil right" guaranteed to all Californians, "whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples," Chief Justice Ronald M. George wrote in a 121-page ruling. He repeatedly said the ruling was based on the California court's first-in-the-nation decision in 1948 to end the state's prohibition on interracial marriage, nearly 20 years before the U.S. Supreme Court took the same action.

The decision sparked a joyous celebration outside the court in San Francisco, but the victory for gay rights groups could be short-lived. Before the ruling, a conservative coalition submitted more than 1 million signatures to place a constitutional amendment banning same-sex marriage on the November ballot.

"These out-of-touch judges will not have the last word on marriage," said Brian Brown, executive director of the National Organization for Marriage California.

If the proposed amendment makes the ballot, the issue is sure to resonate in the fall, not only in California but also on the presidential campaign trail.

Democratic Sens. Barack Obama (Ill.) and Hillary Rodham Clinton (N.Y.) issued careful and nearly identical statements saying they support civil unions to protect the rights of same-sex couples. Both avoided taking a position on same-sex marriage, saying states should make such decisions.

Sen. John McCain's campaign said the Arizona Republican "supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman."

McCain, who last week decried judicial activism, "doesn't believe judges should be making these decisions," a spokesman added.

A different reaction came from California's Republican governor, Arnold Schwarzenegger, who has twice vetoed legislation that would have allowed same-sex marriages.

"I respect the Court's decision and as Governor, I will uphold its ruling," he said in a statement. ". . . I will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

The landmark decision grew out of San Francisco Mayor Gavin Newsom's directive to local clerks four years ago to provide marriage licenses to same-sex couples, saying it was unconstitutional not to. Starting on Feb. 12, 2004, thousands descended on San Francisco's City Hall to obtain those licenses and exchange marriage vows.

The state Supreme Court nullified those marriages later that year, saying the clerks lacked such authority without a ruling from the court.

But the divided justices provided it yesterday with a strongly worded opinion, saying the state could prove no compelling interest in denying marriage to same-sex couples.

"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," Chief Justice George wrote.

California has some of the most progressive domestic-partnership laws in the country, affording same-sex couples virtually all the legal benefits and protections of marriage. But a 1977 law and a voter initiative in 2000 restricted marriage to a union between a man and a woman.

"Reserving the historic designation of 'marriage' exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples . . . equal dignity and respect," George wrote.

Dissenting justices said the progressive policies adopted by the state legislature were not enough for the court's majority, which they said created rights found neither in the constitution nor in tradition.

"A bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves," Justice Marvin R. Baxter wrote.

Justice Joyce L. Kennard rejected the charge of judicial activism. The architects of both the state's and the nation's constitutions acknowledged that "deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups," Kennard wrote. ". . . The most effective remedy for this form of oppression is an independent judiciary."

The majority opinion went to some length to say the ruling had no effect on the religious institution of marriage. "No religion will be required to change its religious policies or practices with regard to same-sex couples," George wrote, "and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs."

Because the challenge concerned only the California Constitution, the decision affects only that state.

Eight states and the District, in addition to California, provide some form of spousal rights for same-sex couples, and a court challenge similar to California's is pending in Connecticut. Twenty-six states, including Virginia, have passed constitutional amendments banning same-sex marriages, and Florida voters will consider one in the fall.

San Francisco Mayor Newsom, who was mocked for his 2004 decision to try to issue marriage licenses to gays, said yesterday that he had been vindicated.

"I don't think we would have won -- and I mean this sincerely, though I may be wrong -- had we not put a human face on this issue," he said in an interview. "So, for that I am proud of what we did in 2004."

Newsom flew from Washington to San Francisco on Wednesday night after being informed that the decision would be released yesterday.

He and his aides began reading the document yesterday, but "we didn't get to the conclusion before we heard a huge roar outside the window, across the street at the courthouse. It was a pretty powerful experience," Newsom said.

Whoops, tears and cheers erupted around City Hall. People wrapped themselves in California flags and waved rainbow-colored ones, and held up signs, many advertising decades-long relationships between same-sex couples.

Stuart Gaffney, a plaintiff with his partner, John Lewis, said during a telephone conference that he was overcome by the court's decision.

"We've waited for over 21 years for this day. But today, I can finally say I will be able to wed John, the man that I love," Gaffney said. "Today is the happiest and most romantic day of our lives."

On the losing side were the state, which had defended the law and the 2000 voter initiative, and conservative legal groups.

"This is outrageous judicial activism and should be a wake-up call to the country," said Kelly Shackelford, chief counsel of Liberty Legal Institute, a nonprofit law firm.

The Massachusetts Supreme Court legalized same-sex marriage in that state in 2003, a decision that had ramifications in the 2004 elections. But Joe Solmonese, president of the liberal Human Rights Campaign, played down the impact that yesterday's decision could have on this fall's elections, saying voters are more concerned about gasoline prices and the war in Iraq than about "social wedge issues."

Surdin reported from Los Angeles.

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