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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.
[Related Story: Tears of joy over ruling]
"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.
Ed Harrington, the general manager of the city's Public Utilities
Commission, has lived with his partner for 35 years. In 2004, he
performed marriage ceremonies for about 40 same-sex couples.
"You wait for this your whole life," said Harrington, who said he
planned to call his partner and say, "I love you. What more do you say
on a day like this?"
He said he didn't know if he would marry, but that "what's important is to be able to (get married) if you want to."
The celebration could turn out to be short-lived, however. 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.
George was joined in the majority by Justices Joyce Kennard, Kathryn
Mickle Werdegar and Carlos Moreno. Justices Marvin Baxter, Ming Chin
and Carol Corrigan dissented - though Corrigan, writing separately,
said she personally believes "Californians should allow our gay and
lesbian neighbors to call their unions marriages."
Baxter, writing for himself and Chin, accused the court majority of
substituting "by judicial fiat its own social policy views for those
expressed by the people."
Both he and Corrigan 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.
The state's high court ordered a halt a month later, after the
nearly 4,000 same-sex weddings had been performed at City Hall. The
court annulled the marriages in August 2004, ruling that Newsom lacked
authority to defy the state law. But it did not rule on the validity of
the law itself and said it would await proceedings in lower courts.
Some of the couples immediately sued in Superior Court and were
joined by the city of San Francisco, which said it had a stake in
ensuring equality for its residents. The case that ultimately reached
the state Supreme Court consolidated four suits, one by the city and
three by 23 same-sex couples in San Francisco and Los Angeles.
Superior Court Judge Richard Kramer, ruling in the San Francisco
cases, declared the ban on same-sex marriage unconstitutional in March
2005. He said the law violates the "basic human right to marry a person
of one's choice," a right declared by California's high court in the
1948 ruling.
Kramer said the law also constituted sex discrimination - prohibited
by another groundbreaking California Supreme Court ruling in 1971 -
because it is based on the gender of one's partner.
But a state appeals court upheld the law in October 2006, ruling 2-1
that California was entitled to preserve the historic definition of
marriage and that the state's voters and legislators, not the courts,
were best equipped "to define marriage in our democratic society."
The appeals court also said California is not discriminating against
same-sex couples, citing state laws that give registered domestic
partners the same rights as spouses. Those laws provide such rights as
child support and custody, joint property ownership, inheritance and
hospital visitation, and access to divorce court.
But domestic partners are denied marital benefits under federal law,
which means they can't file joint federal tax returns, collect Social
Security survivors' benefits or sponsor one another as immigrants.
The suits before the court relied on the California Constitution,
which state courts have long interpreted as being more protective of
individual rights than the U.S. Constitution. The initiative that
California voters are likely to consider in November would write a ban
on same-sex marriage into the state Constitution, a step already taken
by voters in half the states.
Gov. Arnold Schwarzenegger has twice vetoed same-sex marriage bills,
citing the 2000 ballot measure that reaffirmed California's
opposite-sex-only marriage law. That initiative was not a
constitutional amendment.
The governor issued a statement today saying, "I respect the court's
decision and as governor, I will uphold its ruling." He also reiterated
his opposition to the constitutional amendment that is likely to be on
the November ballot.
Suits similar to those that went before the California Supreme
Court have been filed in other states, but only the Massachusetts
Supreme Judicial Court has ruled that the state's constitution gives
gay and lesbian couples the right to marry.
Courts in Vermont and New Jersey have found their states' marriage
laws discriminatory but left the remedy up to state legislatures, which
opted in both cases for civil unions for same-sex couples rather than
marriage. A similar ruling by the Hawaii Supreme Court in 1993 was
overturned by a ballot initiative.
The California case is In re Marriage Cases, S147999. The ruling is available at www.courtinfo.ca.gov/opinions.
Chronicle staff writers Cecilia M. Vega and Heather Knight contributed to this report. E-mail Bob Egelko at begelko@sfchronicle.com.
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