SAN FRANCISCO—After a four-year hiatus, same-sex marriage, the hot-button cultural issue that served as a major partisan divide in the last presidential election, is back. Yesterday, the California Supreme Court declared unconstitutional a voter initiative banning same-sex marriage in the state. Its 4-to-3 decision paves the way for California to join Massachusetts as the only states where gay and lesbian couples can legally marry. "It is a precedent-setting case," says Douglas Kmiec, a law professor at Pepperdine University. "It's a major victory for proponents of same-sex marriage in the most populous state in the union."
The decision, which legal experts say has far-reaching implications beyond California, ends a legal challenge that began in 2004, when Gavin Newsom, the mayor of San Francisco, started issuing marriage licenses to same-sex couples, sparking joyous celebrations in some quarters and outrage in others. That spring, President Bush threw his support behind a federal constitutional amendment that would have redefined marriage as being between a man and a woman. It never passed. The California Supreme Court, meanwhile, voted to annul Newsom's marriages, citing a state law, Proposition 22, passed in 2000 by more than 60 percent of voters, that defined marriage as between a man and a woman. Lawsuits challenging the constitutionality of the law were filed the next day.
The suits worked their way through the lower courts, and the state Supreme Court issued a ruling yesterday that offered unwavering support to the 23 same-sex couples who were plaintiffs. "The real dispute in California was over nomenclature," Kmiec says. Because of California's robust domestic partnership laws, which provide same-sex couples with most of the legal rights and privileges afforded to straight couples, the decision, ultimately, came down to semantics. Should same-sex couples, who are allowed by state law to form families, adopt children, and inherit their partner's assets, be allowed to call their relationships "marriage"?
Writing the majority opinion, Chief Justice Ronald George said yes. Three of his colleagues on the bench agreed that gays and lesbians not only enjoy the same fundamental right to marry that straight people do but concluded that preventing them from marrying amounts to a denial of their equal protection rights under the California Constitution. George made a point of emphasizing that banning same-sex marriage qualified, in the court's view, as discrimination: "The statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents—like gender, race, and religion—a constitutionally suspect basis upon which to impose differential treatment."
The state's attorneys argued that there was a long history of marriage being between a man and a woman, and that it should therefore remain that way. George rejected the argument out of hand. Although 26 states have constitutional amendments banning same-sex marriage, California's court found no "compelling state interest" that justifies preventing same-sex couples from marrying. Instead, the court said that calling same-sex and opposite-sex unions by different names gave gay couples the appearance of being "second-class citizens." "We conclude," George wrote, "that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."
The court's reasoning raised the eyebrows of some legal scholars, who believe the decision has implications far beyond the boundaries of the state. "It's guaranteed to enrage a lot of people," says Andrew Koppelman, a law professor at Northwestern University. Lumping sexual orientation, in with the law's other most protected classes—gender, race, and religion—is something neither the U.S. Supreme Court nor most civil rights law has done, primarily, experts say, because it would open the door to lawsuits over everything from Social Security benefits to who can serve in the military. Soldiers kicked out of the Army for being gay, for example, will now have some legal support for the argument that "Don't Ask, Don't Tell" is unconstitutionally discriminatory. The California court's decision isn't binding at the federal level or in any other state, of course. But now that the argument has been made, it will be made again. "There are 1,100 benefits denied gay couples [in California] under federal law," says Kmiec. "What we'll see is an attempt to use this as a precedent."