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Break out the bubbly. There will be a party in West Hollywood and San Francisco’s Castro District tonight. In a startling move, the California Supreme Court on Thursday declared ( .pdf) laws prohibiting marriage by same-sex couples unconstitutional. “The California Constitution,” Chief Justice Ronald George wrote, “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.” George was joined in the 4-3 decision by Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno. The majority held, for the first time, that gay and lesbians form a suspect class, requiring the marriage ban to be given strict scrutiny. The historic ruling, issued on a blazing hot day in San Francisco, makes California only the second state after Massachusetts to legalize marriages for gays. And it’s certain to enrage conservatives who have fought vigorously to block such a step. Their frustrations were expressed in a dissent by Justice Marvin Baxter, who called the ruling a “startling conclusion” that overstepped the court’s authority. “I cannot join this legal jujitsu,” he wrote, “by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the people’s will and invalidate a statute otherwise immune from legislative interference.” He was joined by Justice Ming Chin. Justice Carol Corrigan authored her own separate dissent. In the 121-page opinion, George noted that excluding same-sex couples from marriage wasn’t necessary to protect the institution of marriage and that doing so could “impose appreciable harm on same-sex couples and their children.” He even highlighted the historic disparagement gays have endured. George also held that domestic partnerships are simply another form of separate but unequal treatment. “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,” he 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 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. Conservative forces, led by the Campaign for California Families and the Proposition 22 Legal Defense and Education Fund, went to San Francisco Superior Court seeking a temporary restraining order as soon as the marriages started. But they were rebuffed. Nonetheless, the California Supreme Court stepped in on March 11, 2004, stopping the issuance of licenses and staying the marriages already performed. The following May 25, the court heard arguments to determine whether the city had overstepped its bounds. The hearings didn’t go well for the city or same-sex couples and, indeed, on Aug. 12, the high court issued a unanimous ruling that held San Francisco had exceeded its authority by performing marriages not recognized by state law. By a 5-2 vote, the court also nullified all the marriages that had been performed. Justices Joyce Kennard and Kathryn Mickle Werdegar dissented, saying the court shouldn’t have invalidated the licenses until determining whether laws prohibiting same-sex marriages meet constitutional muster. By that time, however, the city of San Francisco had already filed a suit in superior court challenging Prop 22, the 2000 ballot initiative that said California couldn’t recognize same-sex marriages from other states. Things quieted down for a few months, until San Francisco Superior Court Judge Richard Kramer in March 2005 declared state laws limiting marriage to a man and a woman unconstitutional. The judge held that any anti-gay marriage law enacted by the Legislature or by voters isn’t constitutional either under the strict-scrutiny test or under the less stringent rational-basis test. Mathew Staver, president of Liberty Counsel, a Florida-based conservative law group, called Kramer’s ruling “absurd, shocking and astounding.” He and other conservatives got their chance to gloat 19 months later when San Francisco’s First District Court of Appeal overturned Kramer’s ruling. By a 2-1 vote — with Justice J. Anthony Kline dissenting — the appellate court held that the state’s ban on same-sex marriage was constitutional even under the rational-basis test. The California Supreme Court granted review two months later in December 2006. And it definitely attracted attention. Late last year, the high court had received 45 separate amicus curiae briefs — the most in California Supreme Court history — with 30 favoring same-sex marriage and 15 opposing. Support came from civil rights groups, medical associations, religious organizations, state legislators, legal groups, law school professors, gay rights groups and some cities and towns. Opposition mainly came from churches, pastors, religiously affiliated groups and some conservative law professors and legal organizations. So when the issue reached oral argument on March 4 of this year, the justices were well educated on all viewpoints. At that hearing, Chief Justice Ronald George, who had been hard to gauge on the issue, seemed to come out swinging in favor of making history by legitimizing gay marriage. He appeared to have the support of Justices Kennard and Moreno for sure, while Justices Baxter, Chin and Corrigan gave all indications that they thought the time hadn’t come to approve same-sex marriage. “Who decides where we are as Californians in our evolution?” Corrigan asked San Francisco Deputy City Attorney Therese Stewart. “Is it for this court to decide or the people of California to decide?” Justice Werdegar was the mystery that day, leaving it unclear which way she would fall. But Werdegar, who has moderate tendencies, usually sides with George, Kennard and Moreno on social issues. However, victory by same-sex couples could be shortlived if an initiative working its way to the November ballot passes and undercuts the Supreme Court ruling. Until today, 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.

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