ALM Properties, Inc.
Page printed from: http://www.law.com
Select 'Print' in your browser menu to print this document.
Gay Marriage Decision Makes HistoryThe California Supreme Court enhanced its reputation as a trailblazing institution Thursday by giving gays and lesbians the right to marry. The 4-3 ruling, which declared unconstitutional a same-sex marriage ban, makes California the second state to grant gays and lesbians marriage rights. But several lawyers noted that the decision went even further than Massachusetts' 2004 ruling by declaring sexual orientation a suspect classification that requires any marriage ban to be reviewed under strict scrutiny.
The Recorder2008-05-16 12:00:00 AM
On a blast-furnace of a day when normally chilly San Francisco hit 96 degrees, the California Supreme Court enhanced its reputation as a trail-blazing institution Thursday by giving gays and lesbians the right to marry.
"The California Constitution," Chief Justice Ronald George wrote in the 4-3 ruling, "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 ruling in In re Marriage Cases, 08 C.D.O.S. 5820, -- which declared unconstitutional a same-sex marriage ban enacted in state law in 1977 and reinforced by voters in 2000 -- makes California the second state in the nation to grant gays and lesbians marriage rights. But several lawyers noted that the California decision went even further than Massachusetts' 2004 ruling by declaring sexual orientation a suspect classification that requires any marriage ban to be reviewed under strict scrutiny.
"It's the first state Supreme Court that I know of that has done that," said Sacramento-based Deputy Attorney General Christopher Krueger, who argued in support of the marriage ban reinforced by Proposition 22. Though he lost the case, Krueger called Thursday's ruling "bold."
Conservative legal groups that had sided with the AG's office reacted swiftly, declaring they will ask the high court to stay its ruling until the November ballot, which likely will contain an initiative to amend the state Constitution to limit marriage to opposite-sex couples.
"We knew it was a very divided court and it was going to be close either way," said Joseph Infranco, a senior attorney with the Scottsdale, Ariz.-based Alliance Defense Fund, "which is why again this is a decision properly left to the voters and not to a razor-thin, one-judge majority."
Mathew Staver, founder and chairman of the Maitland, Fla.-based Liberty Counsel, called the ruling "outrageous."
"I agree with the dissenting justices that this decision represents judicial jujitsu," he said. "It represents judges acting like legislators, and it will compel the people of California to amend their constitution."
Staver was referring to Justice Marvin Baxter's dissent -- joined by Justice Ming Chin -- in which he said he couldn't join "this exercise in legal jujitsu" that will "create a constitutional right from whole cloth, defeat the people's will and invalidate a statute otherwise immune from legislative interference."
Writing separately, Justice Carol Corrigan argued that while she favors calling same-sex unions "marriages," she had to acknowledge "that a majority of Californians hold a different view, and have explicitly said so by their vote."
Corrigan noted that change has been taking place over the years with gays and lesbians getting near-equal rights through the state's ever-evolving domestic partnership laws.
"We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root," she wrote. "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."
Gay couples and their attorneys, meanwhile, celebrated.
During a telephone press conference an hour after the ruling came out, Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights, called it "a moment of pure happiness and joy for so many families in California." San Francisco City Attorney Dennis Herrera called it "an incredibly historic day" and said the Supreme Court had taken "a bold leap ... for marriage equality and equal protection."
San Francisco Deputy City Attorney Therese Stewart, who argued for the city before the high court, pointed out that the ruling resonates for the more than 200,000 same-sex couples identified in the 2000 census. Others noted that the ruling could have much more impact than Massachusetts' because out-of-staters can come to California to get married.
Several commented on the California Supreme Court's leadership role in other civil rights cases. Sixty years ago, the court led the nation by issuing Perez v. Sharp, 32 Cal.2d 711, which struck down laws that prohibited interracial marriage.
"Today, the justices of the California Supreme Court again lived up to their oath to uphold the Constitution for all," Evan Wolfson, executive director of the New York-based Freedom to Marry, said in a prepared statement. "And as with their courageous past stands against discrimination in marriage, we will all be the better and history will vindicate them."
The giddiness surrounding the ruling might have best been expressed by the fact that the San Francisco county clerk's office was already getting calls Thursday from couples wishing to apply for a marriage license. On its Web site, the clerk's office advised couples to make appointments for later dates; the Supreme Court's ruling doesn't take effect for 30 days.
Not long after the ruling came out, roughly 200 same-sex marriage advocates packed San Francisco's City Hall rotunda, where numerous marriage ceremonies take place every day.
Stewart warned that the court would face criticism for its decision: "We all need to be involved in defending the California judiciary against partisan and political attacks and educate ourselves about the role of the courts and the importance of having an independent judiciary."
The same-sex marriage fight has roiled the state since Feb. 12, 2004, when officials at San Francisco City Hall began issuing marriage licenses to same-sex couples by order of Mayor Gavin Newsom. For nearly a month, more than 4,000 couples from around the world got licensed at City Hall -- and in most cases were immediately wed by local officials. The state Supreme Court nullified all the marriages in August 2004.
A suit seeking to strike down the voter-approved ban on same-sex marriages was later filed on behalf of 14 couples and two marriage equality organizations. A San Francisco Superior Court judge sided with them in 2005, but was later overturned 2-1 by San Francisco's 1st District Court of Appeal.
Three of the four justices siding with gay couples on Thursday -- George, Joyce Kennard and Kathryn Mickle Werdegar -- were appointed by Republican governors. Yet they, along with Justice Carlos Moreno, are moderate on social issues while the three dissenters are philosophically more to the right. So it was no surprise that Justice Baxter danced close to accusing the majority of engaging in judicial activism.
SHOOTING DOWN ARGUMENTS
In the 121-page opinion, George found that domestic partnerships -- which give gay couples many of the rights of their heterosexual counterparts -- aren't equal to marriages.
"Retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples from the legal institution of marriage," George wrote, "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 or opposite-sex couples."
The chief justice pointed out that just as mixed-race couples weren't seeking a new right of "interracial marriage" in Perez, gay couples weren't seeking a new constitutional right to same-sex marriage. People in both groups simply wanted to marry the partner of their choice.
George also shot down arguments that marriage should remain solely a union between a man and a woman based on the fact that it has traditionally been recognized that way.
"Tradition alone, however," he wrote, "generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right."
In addition, George gave short shrift to conservatives' arguments that gay couples can still get married as long as they wed someone of the opposite sex, and that allowing same-sex marriages would destroy the institution of marriage.
He said it was "sophistic" to think gay couples could marry simply by ignoring the fact they're attracted to the same sex, and disputed any notion that gay marriages would somehow ruin straight marriages.
"Extending access to the designation of marriage to same-sex couples," George wrote, "will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children."
THE NEXT FRONTIER
Oakland appellate specialist Jon Eisenberg, who represented the National Association for the Advancement of Colored People as amicus curiae supporting gay marriage, said Thursday's ruling will cement George's legacy.
"As I read this opinion, I gradually came to feel George has taken his place with the giants of California jurisprudence -- [former chief justices] Roger Traynor, as well as Phil Gibson."
Eisenberg, a partner in Eisenberg and Hancock, also said that if conservative forces mount a recall drive against George, Kennard, Werdegar and Moreno, they will fail.
"California today," he said, "is very different from the California of eight years ago when Prop 22 was passed."
Some gay and lesbian attorneys said they were elated, yet wary.
Nanci Clarence, whose marriage license to her longtime partner was among those declared null and void in 2004, said same-sex marriage is the last major civil rights frontier.
"This is going to be a dialectical struggle probably for the rest of my life," she said. "I've been out of the closet all my professional life, and I think the law is changing because people have been willing to live their lives openly and freely."
Bruce Deming, a corporate partner at Covington & Burling, and his partner will celebrate their 17th anniversary June 1.
"It's a great victory today, but we also know there's going to be a referendum on the ballot," he said, adding that it's strange to not know if this marriage will be annulled again in November, "and how do we explain that to our kids?"
Until Thursday, Massachusetts was the only state to OK same-sex marriages, legalizing them by order of the state Supreme Court in 2004. And, according to statistics compiled by Marriage Equality USA, only six states allow civil unions or domestic partnerships.
Those OK'ing civil unions were Vermont in 2001, Connecticut in 2005, New Jersey in 2007, and New Hampshire this year. Domestic partnerships were recognized in California in 2000 and Oregon this year. Limited rights for same-sex couples are provided in Hawaii, Maine, Washington and the District of Columbia. Same-sex marriage also isn't an issue confined to the United States. Since 2001, the Netherlands, Belgium, Canada, Spain and South Africa have allowed gays and lesbians to marry. And, according to Marriage Equality USA, civil unions and domestic partnerships are legal in Croatia, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Mexico, New Zealand, Norway, Portugal, Sweden, Switzerland and the United Kingdom.
Reporter Petra Pasternak contributed to this story.