By Lisa Keen – Keen News Service

California high court strikes down ban on same-sex marriage in pivotal victory for gay rights

Shelly Bailes, left, and her partner, Ellen Pontac, celebrate outside the California Supreme Court building in San Francisco on Thursday, May 15, after the Supreme Court overturned a voter-approved ban on gay marriage. – PAUL SAKUMA/Associated Press

"Today is a day we’ll remember forever," declared Molly McKay, media director for Marriage Equality USA, shortly after the California Supreme Court announced its decision on Thursday, May 15 that state laws prohibiting the recognition of same-sex marriages violate the constitutional rights of gay people.

Pamela Brown, policy director for the group, added, "Today’s decision recognizes that the time has come for lesbian and gay couples to be woven into the fabric of California families and to have the freedom to enter into the civil institution of marriage."

Both women plan to marry their longtime partners, with Brown saying the ruling "means the world" to her and her partner Shauna, while McKay said she "can’t wait to marry [her partner] Davina after 12 wonderful years together."

The 4-to-3 opinion, joined by three Republican and one Democratic appointee, declared that the "fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society" requires the California constitution "be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation."

The ruling is seen as a monumental victory for gay rights because California, the country’s most populous state, enjoys broad social, political, economic and cultural influence. The California Supreme Court, the first to overturn a ban on interracial marriage in 1948, is also held in high regard.

"I could not be happier," said Evan Wolfson, one of the top gay attorneys in the fight for marriage rights and head of the national Freedom to Marry group.

"This is the turning point. This is the absolute statement by the nation’s most respected state supreme court, and a chief justice who is universally considered to be fair and cautious, affirming that the exclusion of same-sex couples from marriage is wrong and must fall," Wolfson said.

Plaintiffs in the suit and the attorneys who represented expressed similar reactions of joy and euphoria during a press conference shortly after the decision was released.

"This is a moment of pure happiness and joy," said Shannon Minter, the lead attorney who argued the case and legal director for the National Center for Lesbian Rights.

Maya Harris, executive director of the ACLU-California, called the decision "a watershed moment."

Harris said the decision would take its "rightful historic place" and "inspire other rulings that will knock down barriers to the fundamental right to marry."

California, the most populous state in the nation, is the second to allow same-sex couples to obtain marriage licenses. Minter said that marriages can begin to be licensed after the ruling takes effect, in about 30 days.

The legal issue before the court was whether state laws banning the legal recognition of same-sex marriages in California violate the state constitution’s guarantees of equal protection, freedom of expression, right to privacy or the fundamental right to marry. The laws banned both the licensing of same-sex marriage in California and the recognition of same-sex marriages licensed elsewhere.

"It is true, of course, that as an historical matter in this state marriage always has been limited to a union between a man and a woman," wrote Chief Justice Ronald George, an appointee of former Republican George Deukmejian. "Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right."

George citied the landmark 1948 decision by the California Supreme Court that struck down laws banning interracial marriage. That decision, Perez v. Sharp, eventually led to the U.S. Supreme Court’s decision in Loving v. Virginia, which struck down anti-miscegenation laws nationally in 1967.

California’s Republican governor, Arnold Schwarzenegger, who has twice vetoed legislation to approve of same-sex marriage, said today he will support the Supreme Court’s decision and will not support the anti-gay marriage initiative that is likely to appear on the November ballot.

And, importantly, the majority said that, after reviewing "numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry," it concluded 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.

Because the lawsuits implicated only the state constitution, the decision is not appealable to the U.S. Supreme Court, said Jenny Pizer, senior counsel in Lambda Legal Defense and Education Fund’s western office.

The lawsuit sprang out of a decision by San Francisco Mayor Gavin Newsom in 2004 to order city officials to defy state law and begin issuing marriage licenses to same-sex couples.

Newsom’s action came just months after the Massachusetts Supreme Judicial Court ruled that the state constitution in that state required equal treatment of gay and straight couples in marriage licensing.

The national Freedom to Marry organization estimates that about 4,000 gay couples obtained a marriage license in San Francisco before the California Supreme Court ordered it to stop. Attorneys for the plaintiffs said those marriages were voided by the state supreme court when it stopped the city from issuing any more licenses.

The California high court made its decision only two months after hearing more than three hours of oral argument in March on the case. During those arguments, several judges asked whether the issue shouldn’t be given to the voters to decide.

The questions seemed to be responding to a drumbeat by many prominent Republican politicians — including President George Bush and Republican presidential nominee John McCain — that rulings supporting equal rights to marriage for gay couples are creating new law and going against the will of the majority of people.

In fact, all but one of the states that have considered ballot initiatives to ban gay marriage have approved them by fairly large margins.

The petition to have a constitutional ban on same-sex marriage on the California ballot this November must still be validated by the California Secretary of State, but activists clearly expect it to be the next big battle.

California has been the scene of one of the longest and most vigorous debates over same-sex marriage. The state marriage law was amended by the legislature in 1977 to ban marriage licenses for same-sex couples. In 2000, voters approved Proposition 22 to amend a state law to prohibit California from recognizing same-sex marriages licensed in other states or countries.

The state legislature has twice approved (in 2005 and 2007) — and Gov. Arnold Schwarzenegger has twice vetoed — legislation to allow licensing of same-sex marriages.

On May 6, a state appeals court ruled that a gay man who believed his male companion had properly registered as his legal domestic partner was entitled to protection under the state’s Domestic Partner Rights and Responsibilities Act, approved in 1999. The ruling provided that the gay partner receive the same legal protection as a person who believed he or she had entered into a legal marriage only to find out later that they had not.

©2008 Keen News Service

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