So, as everyone probably knows by now, the California Supreme Court struck down the ban against same-sex marriage as unconstitutional last week in the most populous state in the nation. California is now the second US state to allow gay marriage. Full blown marriage.
The decision is historic and they based it on another historic California Supreme Court decision, from 1948, that struck down as unconstitutional the laws against interracial marriage.
Some excerpts that made me tear up a bit.
From The New York Times:
The California Supreme Court, striking down two state laws that had limited marriages to unions between a man and a woman, ruled on Thursday that same-sex couples have a constitutional right to marry.
The 4-to-3 decision, drawing on a ruling 60 years ago that struck down a state ban on interracial marriage, would make California the second state, after Massachusetts, to allow same-sex marriages.
[...]
Given the historic, cultural, symbolic and constitutional significance of marriage, Chief Justice Ronald M. George wrote for the majority, the state cannot limit its availability to opposite-sex couples.
“In view of the substance and significance of the fundamental constitutional right to form a family relationship,” Chief Justice George wrote, “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.”
[...]
The Supreme Court was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The vote in Perez, like the one in Thursday’s decision, was 4 to 3. The United States Supreme Court did not follow suit until 1967.
[...]
The decision was rooted in two rationales, and both drew on the Perez case.
The first was that marriage is a fundamental constitutional right.
“The right to marry,” Chief Justice George wrote, “represents the right of an individual to establish a legally recognized family with a person of one’s choice and, as such, is of fundamental significance both to society and to the individual.”
Chief Justice George conceded that “as an historical matter in this state marriage has always been restricted to a union between a man and a woman.” But “tradition alone,” he continued, does not justify the denial of a fundamental constitutional right. Bans on interracial marriage were, he wrote, sanctioned by the state for many years.
In a second rationale from the interracial case, the court struck down the laws banning same-sex marriage on equal protection grounds, also adopting a new standard of review in the process.
When courts weigh whether distinctions among people or groups violate the right to equal protection they generally require just a rational basis for the distinction, a relatively easy standard to meet. But when the discrimination is based on race, sex or religion, the courts generally require a more substantial justification.
Discrimination based on sexual orientation, the majority ruled on Thursday, also requires that sort of more rigorous justification. The court acknowledged that it was the first state high court to adopt the standard, strict scrutiny, in sexual orientation cases.
From Towleroad:
"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. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, 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."
"Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest."
"A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples 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. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."
From CNN:
"It's a throwaway line, but I think it's true: As California goes, so goes the rest of the nation," Newsom said. "And I don't think people should be paranoid about that. ... Look what happened in Massachusetts a number of years ago. Massachusetts is doing just fine. The state is doing wonderfully."
Let's hope he's right. Gavin Newsom is the Mayor of San Francisco, the one who allowed gay couples to marry 4 years ago, holding that the California ban was unconstitutional. Those marriages were later annulled and were used as the basis for the lawsuit that brought this victory about.
This is a throwaway line too, but... God Bless Him!! We wouldn't be celebrating today if it weren't for this man's leadership, vision and courage!
More from CNN:
"There can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state's general legislative policy and preference," the ruling said.
"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 that the remaining statutory language must be understood as making the designation of marriage available to both opposite-sex and same-sex couples."
Newsom compared the ruling to the 1967 U.S. Supreme Court ruling in a Virginia case overturning that state's ban on interracial marriage.
"This is about civil marriage. This is about fundamental rights," he said.
From Yahoo:
Massachusetts is the only other state to legalize gay marriage, something it did in 2004. The California ruling is considered monumental by virtue of the state's size — 38 million out of a U.S. population of 302 million — and its historic role in the vanguard of the many social and cultural changes that have swept the country since World War II.
California has an estimated 92,000 same-sex couples.
"It's about human dignity. It's about human rights. It's about time in California," San Francisco Mayor Gavin Newsom, pumping his fist in the air, told a roaring crowd at City Hall. "As California goes, so goes the rest of the nation. It's inevitable. This door's wide open now. It's going to happen, whether you like it or not."
Unlike Massachusetts, California has no residency requirement for obtaining a marriage license, meaning gays from around the country are likely to flock to the state to be wed, said Jennifer Pizer, a gay-rights attorney who worked on the case.
The ultimate reach of the ruling could be limited, however, since most states do not recognize gay marriages performed elsewhere. Nor does the federal government.
And naturally, there must be someone trying to rain on our parade.
California's Supreme Court declared gay couples in the nation's biggest state can marry — a monumental but perhaps short-lived victory for the gay rights movement Thursday that was greeted with tears, hugs, kisses and at least one instant proposal of matrimony.
Same-sex couples could tie the knot in as little as a month. But the window could close soon after — religious and social conservatives are pressing to put a constitutional amendment on the ballot in November that would undo the Supreme Court ruling and ban gay marriage.
[...]
"It will be up to the people of California to preserve traditional marriage by passing a constitutional amendment. ... Only then can they protect themselves from this latest example of judicial tyranny," he said in an e-mail statement.
[...]
The conservative Alliance Defense Fund said it would ask the justices for a stay of the decision until after the fall election in hopes of adding California to the list of 26 states that have approved constitutional amendments banning same-sex marriage.
"We're obviously very disappointed in the decision. The remedy is a constitutional amendment. The constitution defines marriage as a union between one man and one woman," said Glen Lavy, senior counsel for the organization.
We'll have to wait a few more weeks to know if they gathered enough signatures to place the initiative on the ballot, but the pessimist in me says they have, so it will be an all out battle between us and them in order to be able to keep the rights we deserve.
