Thursday, May 15, 2008

Same-sex couples have right to marry

Justin Sullivan/Getty Images -- Gay and Lesbian couples hold a California flag
in front of the California Supreme Court in San Francisco. (LATimes)


In a decision 4-3, the California Supreme Court ruled that gays and lesbians have the right to marry. SFO Chronicle:

...the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

"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," Chief Justice Ronald George wrote in the majority opinion.

Allowing gay and lesbian couples to marry "will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage," George said.

In addition, he said, the current state law discriminates against same-sex couples on the basis of their sexual orientation - discrimination that the court, for the first time, put in the same legal category as racial or gender bias.

The ruling set off a celebration at San Francisco City Hall, where nearly 4,000 same-sex weddings were performed in 2004 before the state high court put a halt to the marriages while challenges to the California law worked their way through the courts. Today's ruling has no effect on those annulments.

Outside the city clerk's office, three opposite-sex couples were waiting at 10 a.m. for marriage certificates. City officials had prepared for a possible rush on certificates by same-sex couples, but hadn't yet changed the forms that ask couples to fill out the name of the "bride" and "groom."

City officials say they'll probably be unable to marry the same-sex couples for another 30 days when the decision fully goes into effect. But they're making appointments for those weddings now.

Oh, but wait. The forces against equality and freedom have mobilized for a ballot measure to amend California's state constitution:

The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid.

If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.

Liberty Counsel, which represented the group Campaign for California Families before the court in arguing for the state law, denounced the ruling and said it would ask the justices to stay its effect until after the November election.

Chief Justice Ronald George "was joined in the majority by Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno." Dissenting justices included Marvin Baxter, Ming Chin and Carol Corrigan. However, Corrigan wrote, "Californians should allow our gay and lesbian neighbors to call their unions marriages." Baxter and Chin "accused the court majority of substituting 'by judicial fiat its own social policy views for those expressed by the people' " in which they noted that "California voters reaffirmed the state's ban on same-sex marriage in a 2000 ballot initiative."

The court "does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice," Baxter said.

But George, in a 121-page opinion, said California has already recognized, in its laws and public policy, that gays and lesbians are entitled to equal treatment in every legal area except marriage. He also noted that state laws and traditions banned interracial marriage until the California Supreme Court, in 1948, became the first court in the nation to overturn such a law.

"Even the most familiar and generally accepted of social policies and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed," the chief justice wrote.

The legal case dates back to February 2004, when San Francisco Mayor Gavin Newsom ordered the city clerk to start issuing marriage licenses to couples regardless of their gender, saying he doubted the constitutionality of the state marriage law.

Gov. Schwarzenegger responded to the court's ruling by saying, "I respect the court's decision and as governor, I will uphold its ruling." He also expressed his "opposition to the constitutional amendment that is likely to be on the November ballot."

The California Supreme Court's ruling is available as a PDF.

UPDATE: Sapphocrat's jubilant headline: "We won! WE WON! Marriage in California!" Celebrating with you and for y'all! Woo hoo!

UPDATE II: Just ran across an insightful post at The Confluence by garychapelhill who, in celebrating the CA court decision, reminded us why Hillary "gets" the LGBT community and Obama doesn't. And he's right. Just as I've argued here over Obama's mealy-mouthed interview with The Advocate, or his disconnect with our community, our press, and our clergy, and his association with homophobes. Hillary "gets" us and I affirmed my support for her because--in addition to her being the most qualified candidate--she understands LGBTs:

I solidly support Hillary who has marched in Gay Pride parades and openly declared her support for equal rights including a repeal of sections two and three of DOMA [cached text if the site won't load]. She's not a perfect candidate, but on LGBT rights coupled with women's issues among other positions, she eclipses Obama. [Emphasis added.]

Another mark against Obama was his introduction of a religion-based bigoted frame--like some GOP wingnut--to same-sex marriage as if our unions aren't equally sacred as those between a man and a woman.

Seriously, Obama doesn't get us. But Hillary does. Well said, Gary.