California High Court to Decide Gay Marriage Case
State could become the second in the nation to legalize same-sex marriage.
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.
The State of California says the ban violates none of these rights.
According to the Attorney General's Office, the Supreme Court lacks the power to overrule the will of voters, who passed Proposition 22 in 2000 to make clear that only men and women can marry each other.
In any event, gays and lesbians can still get married (though only to people of the opposite sex), the attorney general says, and the Domestic Partnership Law gives them the same rights and privileges as everyone else.
How it all started
In 2004, San Francisco Mayor Gavin Newsom began to grant gay and lesbian couples marriage licenses. Six months later, the state Supreme Court ruled that the mayor did not have the power to do so in the face of state law.
San Francisco sued to overturn the law, and in 2005 a San Francisco judge ruled that the law violated the state constitution. In 2006, a state court of appeals reversed, ruling 2-1 that only the voters or the legislature, not the courts, had the power to define marriage.
The Supreme Court agreed to review the case in 2007, consolidating the San Francisco suit with several others filed by gay and lesbian couples and organizations opposing or supporting the ban on gay marriage.
What do other states and countries say?
Since Massachusetts made gay marriage legal in 2003, voters in 28 states have considered measures that would explicitly prohibit the practice, and 27 such measures have passed. The measures seem redundant, because no state other than Massachusetts currently allows gay marriage.
In 1996, the federal government enacted the Defense of Marriage Act, which says same-sex relationships are not accorded any federal rights.
Gays and lesbians may marry in five nations: the Netherlands, Belgium, Canada, South Africa and Spain. Israel's High Court of Justice has ruled that same-sex marriages from elsewhere must be legally recognized.