California High Court to Decide Gay Marriage Case

May 15, 2008 — -- The California Supreme Court is set to decide today whether the state ban on gay marriage is legal. Here's an idea of what to expect.

What will happen?

If the court strikes down the ban: California, the nation's most populous state, will become only the second to make gay marriage legal. Massachusetts was the first, in 2003. The court would probably order the state to grant marriage licenses to same-sex couples.

If the court upholds the ban: California law will continue to provide that "only marriage between a man and a woman is valid or recognized in California."

A third option: The court could strike down the law but order the legislature or voters to start over. The effect would probably be to allow gay marriages, but the court might avoid accusations of judicial activism.

But keep in mind: An initiative that would amend the California Constitution to prohibit gay marriage will probably appear on the November ballot. If it passes by a majority vote, the initiative will trump a Supreme Court decision in favor of gay marriage and take the issue out of the hands of the courts and the legislature. The secretary of state is now validating signatures for a petition to put the initiative on the ballot.

What must the court decide?

Whether the marriage ban violates the rights of gays and lesbians to be treated equally under the law, despite their gender or sexual orientation; to associate with the people they truly love; and to get married.

San Francisco argues that the marriage ban violates all those rights. As the lead plaintiff in the suit, the city, represented by the city Attorney's Office, compares the ban to the one on interracial marriage, which the state Supreme Court struck down in 1946, the first in the nation to do so.

San Francisco also argues that California's 2007 Domestic Partnership Law, which grants gay and lesbian couples all the rights and legal protections of married couples, isn't enough, because "words matter": the inability to get married is a stigma that makes gays and lesbians second-class citizens.