California Legalizes Same-Sex Marriage

May 15, 2008— -- More than 1,000 supporters filed onto the rotunda steps of San Francisco's City Hall this morning awaiting -- then celebrating -- the California Supreme Court's decision to strike down the ban on gay marriage. The court ruled four to three that same-sex couples had a constitutional right to marry regardless of sexual orientation.

Yelling over the din of the crowd, Kate Kendell, executive director of the National Center for Lesbian Rights, blurted, "I'm living history!"

Though only a handful of legal rights and obligations differ from those of a same-sex domestic partnership or heterosexual marriage, the court's decision acknowledged that domestic partnership did not carry the same weight as marriage, said Suzanne Goldberg, a Columbia Law School professor and director of the sexuality and gender law clinic.

"Before, California had a separate but equal relationship recognition rule, where straight couples could marry and gay people had domestic partnerships," Goldberg said. "That separate but equal rule is now gone, and equality has taken its place."

The court's opinion, written by California Chief Justice Ron George, said that "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy."

Social and religious conservatives derided the decision, and pressed an effort to put a constitutional amendment on the November ballot that could allow California voters to override the court's decision and again ban gay marriage.

Tony Perkins, president of the Family Research Council in Washington, explained why conservatives are so upset.

"Judicial activism has come back with a roar here," he said, calling the decision "the equivalent of a judicial shotgun wedding."

Particularly "egregious," Perkins said, was the court's opinion that the state had no compelling reasons to preserve the tradition of marriage.

"I take great exception to that," he said. "There are 9.5 million reasons in the state of California to preserve marriage -- it's called children. This shows a total disregard not only for voters but for recorded human history that marriage is between a man and a woman."

Perkins predicted that the California decision would encourage same-sex couples from across the country to get married in California, then return to their home states and challenge those governments to recognize their same-sex marriages.

California's ban on gay marriage, which was based on a law passed in 1977 and a statewide initiative in 2000, had limited a formal marriage to a man and a woman. Today's ruling deemed those laws unconstitutional because they violated the California state constitution protecting equality and fundamental rights.

Under existing California legislation, same-sex couples shared many of the same legal rights and responsibilties as their married heterosexual counterparts, including the right to divorce and receive child support.

But Human Rights Campaign president Joe Solmonese said that the court's "strongly worded statement" offered two additional points he described as "extremely important."

"First, there is no compelling reason to deny same-sex couples the ability to marry," he said. "Also, there was a separate institution that same-sex couples were confined to. That separate institution, the decision said, caused a real and lasting negative impact on same-sex couples in the state."

George's statement, according to Solmonese, "went beyond just recognizing same-sex marriage but had very strong things to say about the circumstances around it."

California is now the second state, after Massachusetts, to give gay and lesbian couples the right to marry.

Kendell, whose organization filed the case four years ago on behalf of 14 lesbian and gay couples and two organizations, said, "The greatest challenge [throughout the legal process] has been realizing what is at stake and hoping desperately that the court would give the issues a fair hearing and to rule based on just the fundamental role of the court and interpretation of the law."

While expressing relief and joy at the decision, Kendell said that the fundamental arguments were irrefutable.

"When you think of basic human dignity, there is no quarrel," she said. "There is no argument, neighbor to neighbor, over whether a lesbian or gay couple choosing to make a commitment of a lifetime together should have the same recognition as anyone else."

Both Kendell and Goldberg pointed out that the court's own justices were under significant political pressure.

"Given that this court is a relatively conservative court, mostly appointed by Republican governors, my sense is that this is a ruling that signals a new beginning that supporting the right of lesbian and gay people to marry is not a fringe issue; it's a mainstream issue consistent with fundamental American values," Goldberg said.

"This is a conservative court," Kendell said. "This was, by no means, a fait accompli."

But Perkins wasn't the only opponent of the decision who spoke out today.

"I believe that the gay and lesbian community deserves to be covered under the same civil rights canopy as the rest of the citizens in state of California," said the Rev. Sam Rodriguez, president of the National Hispanic Christian Leadership Conference and advisory board member of the Alliance for Marriage. "But ... there's nothing in our Constitution or adjudicated at the federal level that has defined marriage as [a] civil right, as [a] right of every citizen."

Members of the gay and lesbian community, he added, "do not have the freedom to usurp the right of marriage from my community."

Defining marriage as a relationship "with the functionality of two participatory roles for the purpose of healthy families," Rodriguez said that he welcomed same-sex couples to "create another system" to serve the function of marriage.

But today's decision, he said, "hijacked democracy, usurped the will of the people ... and was an assault on the institution of family."

Jennifer Chrisler, a lesbian mother of two and executive director of the Family Equality Council in Massachusetts, is married and raises two twin boys with her partner in Massachusetts. She believes that the best evidence in the case for same-sex marriage is the existence of married, productive same-sex couples.

"Having lived through Massachusetts' marriage experience myself, I think there's no greater influencer than same-sex couples getting married, being productive citizens, being good parents and doing nobody any harm in the process," she said. "We can show Californians who vote in November that it's a good thing for families to be strong.

"We want folks to understand," she said, "[that] like all families in this country, we need the same protections and responsibilities to keep us healthy and strong."

Calling the outcome an "all-points victory," Goldberg said, "I think it is heartening in that the court was, of course, under great political pressure and, as we know from American history, it's terribly important that the court enforce quality guarantees even when a decision might be politically unpopular."

The court's decision will take effect in 30 days, and both Kendell and Goldberg said they expect couples to start marrying after that time.

"Opponents of marriage equality would like to see tidal waves of outrage sweeping the country," Goldberg said. "But the demographics are shifting and the polling is shifting, and while I expect some fireworks over this, my hope and expectation is that not a lot will change" in the California judge's decision.