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Thursday, May 15, 2008

California Gay Marriage Ruling

posted by on May 15 at 11:09 AM

(Originally posted at 10:03 am.)

From the AP:

The California Supreme Court has overturned a ban on gay marriage, paving the way for California to become the second state where gay and lesbian residents can marry.

The San Francisco Chronicle says the courts ruling goes into effect in 30 days—and could be undone by voters in six months.

Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, 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.

And here’s California governor Arnold Schwarzenegger (R-Hollywood) on the ruling:

Governor Arnold Schwarzenegger released the following statement today regarding the state Supreme Court’s ruling on same-sex marriage:

“I respect the Court’s decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”

The full text of the decision is here—ad it’s 172 pages long. I sent a note to a friend asking if it meant gay marriage is legal now, right away, or if the court ordered the legislature to act, etc. And he replied, “Still reading, poodle.” Me too. But here are some quick hits from the decision:

First, this will piss off the Hutchersons of the world: right out of the gate—in the first few pages—the CA supremes compare same-sex marriage to interracial marriage…

Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court’s landmark decision 60 years ago in Perez v. Sharp (1948) 32 Cal.2d 7114—which found that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state—makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized.


….we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family….

Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that 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….

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples….

I also love this, which comes near the end of the decision….

Extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children. As Chief Judge Kaye of the New York Court of Appeals succinctly observed… “There are enough marriage licenses to go around for everyone.”

Further, permitting same-sex couples access to the designation of marriage will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes upon opposite-sex couples who marry. Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

The court neglects to mention, however, the freedom of religious organizations and officiants that do with to solemnize same-sex marriages.

Jumping back a bit, the CA supremes dispense with the argument that domestic partnership or civil unions—marriage by some other name—is or should be good enough. If the state wants to deny the term marriage to gay couples, the court states, then the state has to deny it to all couples.

[The Attorney General] reasons that so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple’s constitutional right to marry simply by assigning their official relationship a name other than marriage….

We need not decide in this case whether the name “marriage” is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if—perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of
marriage—the state were to assign a name other than marriage as the official
designation of the formal family relationship for all couples. Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership).

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while 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 such equal dignity and respect.

Says Andrew Sullivan:

[The] court just ruled for it—sixty years after California’s court was the first to strike down miscegenation bans. The most populous state now joins much of the rest of the Western world in bringing gay couples into the civic and human family as equals. More soon on the decision itself. One key fact: the ruling takes effect in 30 days—which means thousands of couples will be able to marry long before any initiative attempts to reverse it. So the initiative question becomes: do you want to divorce thousands of already-married couples? Or do you want to keep things as they now are? That’s a big advantage for the pro-equality forces.

RSS icon Comments



Posted by Justin | May 15, 2008 10:12 AM


Posted by DanFan | May 15, 2008 10:12 AM

great news!

Posted by jayme | May 15, 2008 10:13 AM

It was a 4-3 decision and we here in CA are still parsing the details. But it's a BIG win.

The fight isn't over yet - the bigots have qualified a constitutional amendment banning equal marriage for the November ballot. But I am confident we can win that fight.

Posted by Robert in Monterey | May 15, 2008 10:14 AM

Yay gays!

Posted by Levislade | May 15, 2008 10:14 AM

HELL YES! Now when will Washington finally make the step from partnerships to marriage? Hopefully we won't blow it again like we did in 2006...

Posted by Cook | May 15, 2008 10:14 AM


Posted by Mr. Poe | May 15, 2008 10:15 AM

Suck my gay marrying ass Rev Hutch

Posted by blaire with an e | May 15, 2008 10:15 AM


Posted by It's about time! | May 15, 2008 10:15 AM

Yay! Let the games begin... C'mon, California, strike down that ballot measure!

Posted by James | May 15, 2008 10:17 AM


I found myself holding my breath when I read the headline.

Posted by Chris B | May 15, 2008 10:17 AM

I'm 11 pages into the case right now...and for law nerds, gays got strict scrutiny and California decided there is no compelling state interest in having a difference between civil unions and marriage. Yay!

Posted by Jake | May 15, 2008 10:18 AM

Here's a link to the opinion. You may want to skip forward to the last full paragraph on p. 120.

Posted by Brendan | May 15, 2008 10:18 AM

Oh, Mr. Poe....

Posted by DanFan | May 15, 2008 10:20 AM

Hoo boy this November is going to be exiting. Massive turnout is going to rock California and rock the whole country. I've been waiting a long time for this.

Posted by elenchos | May 15, 2008 10:21 AM


Now move on to something more relevant?

Posted by tt | May 15, 2008 10:24 AM

Thank goodness.

Posted by Clearlyhere | May 15, 2008 10:24 AM

So does this mean California gay couples can start lining up now for marriage licenses?

Posted by James | May 15, 2008 10:27 AM

[big sigh]

Wow. I feared the worst; Cali's supremes are a pretty right-wing bunch these days. And it was a narrow decision. But a decision it was. It's great news.

This will energize the kooks in November a little, but, since they don't have anyplace to go -- no kook candidate, as of yet -- I don't think it'll be much noticed in the hurricane of Democratic support.

Do watch as Republicans start grilling Obama on gay marriage fifty times a day, though.

Posted by Fnarf | May 15, 2008 10:28 AM

See, inter-racial marriage is okay because no-one can choose their race.

But homosexuality is a choice!

Because when one looks at all the discrimination that gays face on daily basis (up to and including death by violence or dread disease), one can only conclude that homsexuals considered being straight and then decided that being gay would be

Yeah, right, that's it.

Posted by Tiktok | May 15, 2008 10:28 AM

Oh god no, now I'm going to have to turn into one those insufferable autonomon stepfords from the NY Times article last month. I'm happier being disreputable.

Posted by Brian | May 15, 2008 10:30 AM

TT, this is relevant you douchebag. What possibly could be more relevant than this?

Posted by Donolectic | May 15, 2008 10:32 AM

Here's hoping WA gets there one day.

Posted by zzyzx | May 15, 2008 10:32 AM

I think so - they told the clerks to act in accordance with their decision. Let the issuing begin!

Posted by jackseattle | May 15, 2008 10:35 AM

@20: and thus has been my response since junior high: how is it a choice if it often leads to discrimination, harassment, etc? Who the fuck makes that choice?

Way to go, California! Please send the memo to Washington state while you're at it.

What I want to know is this: what's the gist of the initiative banning gay marriage and what's it based on, and how will this ruling affect that? Will this ruling render the initiative useless and unconstitutional? Because that would be awesome.

Posted by Jessica | May 15, 2008 10:41 AM

I am so proud to be a Californian.

Posted by arduous | May 15, 2008 10:44 AM

wow. for a second this insane world seems sane.

Posted by ZWBush | May 15, 2008 10:46 AM

@25: the initiative is a constitutional amendment, and would render the court's favorable decision null and void, unfortunately.

a word to those who think this decision is non-news... imagine that you have to leave the US because you can't marry your non-citizen partner. Then marriage is a big deal. State level decisions don't get us federal rights, but they do pave the path to them. So perhaps you should consider the interests of others for a change.

Posted by thewalrus | May 15, 2008 10:48 AM

So, this will give a kick in the pants to the California wedding tourism industry!

San Francisco's going to be humming!

Posted by Will in Seattle | May 15, 2008 11:01 AM

@25 Not that I want to somehow imply that I think homosexuality is a choice (I know from experience) but there are many groups that buck social norms for the sake making a statement, like Goths or Hipsters. The fact that gays (as a whole) are lumped into this category is a fallacy that needs to be proven false through more rulings like the one today.

Posted by UNPAID BLOGGER | May 15, 2008 11:01 AM


I think that's what #20 was saying. Who would choose to endure that shit?

Posted by keshmeshi | May 15, 2008 11:03 AM

The constitutional amendment still has to bow to the federal Constitution, which does not yet have an amendment banning homosexual marriage. Since the court cited interracial marriage, the Californian constitutional amendment would have to do some damn fancy footwork to prove that it's not in the same realm as the federal decision.

Posted by Kat | May 15, 2008 11:04 AM

Gay marriage is THE frontier for human rights in the developed world. Every one of us benefits hugely from each of these humanity boosting decisions.
That said, congratulations gays! Yay!

Posted by hillpagan | May 15, 2008 11:04 AM

What are the odds that a constitutional amendment banning gay marriage will pass in this fall's election in California?

This makes me very, very nervous. If the amendment passes, it will another generation before we have marriage equality.

Posted by CCSea | May 15, 2008 11:09 AM

I've read (from a news article, not the actual decision) that the court's ruling will take effect in 30 days, making it legal for a same-sex couple to get married in CA.

Posted by Lesley | May 15, 2008 11:11 AM


Posted by Vince | May 15, 2008 11:15 AM

I want a comment from the Chief Justice of the WA Supreme Court. This decision makes her look like a gutless fool.

Posted by crazycatguy | May 15, 2008 11:16 AM

Aw... those snippets from the ruling are awesome. Yay for judges using their power for good (I don't call them "activists" though, for the obvious reasons.)

Posted by leek | May 15, 2008 11:20 AM

The correct answer to "but it's a choice" argument is "so what". Being a Presbyterian is a choice, too, and they get to marry.

Odd that California's conservative justices can see truth and justice more clearly than Washington's flaccid liberal ones (Barbara Madsen, are you fucking listening, you fucking skank?)

Posted by Fnarf | May 15, 2008 11:24 AM

@33 I can almost guarantee you that the US Sup's would affirm a state constitutional ban on gay marriage. I doubt Kennedy would step out on a limb on this issue.

Posted by vooodooo84 | May 15, 2008 11:25 AM

Pastor Hutch is going to have the prayer warriors on their knees over this.

Posted by inkweary | May 15, 2008 11:28 AM

Hey Dan, since there's probably going to be a prop on the ballot in November to overturn the decision, where can we send our money to make sure that this doesn't get overturned?

I know the HRC is setting up a fund, but um, I kinda don't want to send my money to the HRC. Anywhere else you recommend? (If you say, "Send it to the HRC," I will.

Posted by arduous | May 15, 2008 11:31 AM

This part? Is awesome. Emphasis mine.

In holding today that the right to marry guaranteed by the state Constitution may not be withheld from anyone on the ground of sexual orientation, this court discharges its gravest and most important responsibility under our constitutional form of government. There is a reason why the words “Equal Justice Under Law” are inscribed above the entrance to the courthouse of the United States Supreme Court. Both the federal and the state Constitutions guarantee to all the “equal protection of the laws” (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7), and it is the particular responsibility of the judiciary to enforce those guarantees. The architects of our federal and state Constitutions understood that widespread and
deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.

For law geeks, this is beautiful.

Posted by cinenaut | May 15, 2008 11:31 AM

@43 truly my favorite justification for an strong and independent judiciary

Posted by vooodooo84 | May 15, 2008 11:38 AM

I'm glad they took up the marriage vs civil union as a word issue.

It's clearly the word marriage that gets people panty twisted. Let's remove it! Civil unions for everybody.

Posted by StC | May 15, 2008 11:39 AM

I'm on record as having no problem with gay marriage. But the Wash. St. DOMA defines marriage as "between one man and one woman" to offset both gay marriage and polygamy. How does one feel about polygamy allowance for consenting adults the age of 18 and over? It technically was legal in the USA until 1879. I also agree with two things that have been said on this Slog. Obama will be grilled on it and the US Supreme Court won't uphold the California ruling.

Posted by lark | May 15, 2008 11:40 AM

Crazycatguy @ 37,

For a 1,000,000% accurate and thoroughly Bahbrah Wahltahs-style interview with Republican Party sleeper agent and future marriage equality homicide bomber “Justice” Barbara Madsen, click here:

In a similar vein of A Tale of Two Cities, her name has been added to a quilt of people who can suck it.

Posted by Original Andrew | May 15, 2008 11:41 AM

"the US Supreme Court won't uphold the California ruling."

?? the US Supreme Court has no jurisdiction over this....

Posted by arduous | May 15, 2008 11:43 AM

@46 the California Supreme Court has final review on the California Constitution, no possiblilty for federal review unless the california constitution violates the federal constitution; which is an absurd position for this issue as there isn't a federal DOMA amendment.

Posted by vooodooo84 | May 15, 2008 11:45 AM


This ruling cannot be appealed to the US Supreme Court, under what is called the "independent and adequate state law grounds" doctrine.

Short version: the US Supreme Court has no jurisdiction to review decisions of state supreme courts that rest on state law grounds, and not federal law grounds.

If you're a state supreme court and your goal is to insulate a ruling from the USSC, the best thing to do is simply rule on state statutory or constitutional grounds, particularly - as here - where state law is more protective of individual liberties.

The issue here, as others have noted, is that the California Constitution can be amended by initiative.

Should we here in WA follow the roadmap laid out in CA - domestic partnership law, expanding it, then a suit just to change the name from "domestic partnership" to "marriage," - we're in better shape, because, the WA constitution cannot be amended by initiative.

Posted by ConLawIII | May 15, 2008 11:49 AM

@50 looking forward to con law next year

Posted by vooodooo84 | May 15, 2008 11:52 AM

Yawn. Gays are boring. Next.

Posted by Jacques Brel | May 15, 2008 12:09 PM

Another case of that vile "gay agenda" perverting the great state of California.

You know that "agenda", right? The evil premise that "All men are created equal"? (Some of us just have nicer asses & bigger dicks.)

How dare those gays think they can be normal people! Before you know it, they'll want to use the same bathrooms and water fountains as us "breeders".

Posted by Sir Vic | May 15, 2008 12:21 PM

So, basically, you have five months to get married - and then force contracts.

Once you get lawyers involved, it's hard to undo things.

Posted by Will in Seattle | May 15, 2008 12:36 PM

while I am all for this I do wish it would have happened this November after the general election. that way maybe the kooks would just stay home since they dont like Mccain.

Posted by Mickey in AR | May 15, 2008 12:40 PM

@34 wrt to whether the fall ballot initiative will pass... in MA after the gays were married for a while and we didn't fall into an abyss of darkness, there was less support for the ballot initiative and it died. Once gay couples were getting married, they became more visible and people became less afraid of them and the threat they posed to the marriages of the fearful.

The press changed too, from photos of flamboyant pride marchers who would make a mockery of your marriage to photos of happy gay families that would be destroyed if the ballot passed.

Posted by amy! in MA | May 15, 2008 1:28 PM

This is great! I only hope that Sen. Obama has the political courage to stand behind this decision when he will be inevitably grilled by the RNC and McCain. If not, then color me disappointed.

Posted by Ace | May 15, 2008 1:40 PM

Mickey in AR @ 55,

Relax. There was a similar fear in 2006 when the New Jersey Supreme Court issued a strong pro-equality ruling and then we had the nationwide Blue Wave, one of the biggest Democratic victories in a generation.

The Republicans have fucked up the country so badly that people have lots more to worry about besides two dudes or two laydeez gettin' hitched.

We need to focus on defeating the CA constitutional amendment in November.

Posted by Original Andrew | May 15, 2008 2:06 PM

Not even you referencing Andrew Sullivan can ruin this moment!

Posted by whatevernevermind | May 15, 2008 3:08 PM

Extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children.

It will also increase the amount of $$$ the state can collect from license fees. Bigger pool of candidates, more money.

Posted by Wolf | May 15, 2008 3:53 PM

Yay! You guys are going to catch right up to Canada at this rate!

Although I had hoped that a few more people would move here in protest of discriminatory laws. But having you as happy neighbours is the next best thing!

Yays all around!

Posted by Kerri | May 16, 2008 9:01 AM

This decision is made of win.

Posted by Greg | May 16, 2008 9:45 AM

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