News California Gay Marriage Ruling
posted by May 15 at 11:09 AMon
(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.