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."
Massachusetts' highest court legalized same-sex marriage in 2004. But that decision applied only to Massachusetts residents. Legal scholars note that the California court's ruling will apply to anyone who visits. California has no residency restrictions on marriage licenses, so once the state begins to issue licenses to same-sex couples—something that is expected later this summer—out-of-state couples will be able to come to California, get married, and return to their home states. "Massachusetts didn't create the same kind of internal pressure," Kmiec says. "California licenses will be exportable."
He adds, however, that it's "an open question whether they will be enforceable in one's home jurisdiction." If same-sex marriages from California aren't recognized in, say, Ohio, more lawsuits will be forthcoming.
In the shorter term, of course, the court's decision is likely to enter the political arena. "I think this decision is certainly good news for John McCain," says Koppelman, noting that McCain has been struggling to attract socially conservative voters. McCain voted against the federal amendment that would have banned gay marriage after the Massachusetts decision, and up to now, he has insisted that this issue is better left to the states. But the stakes may be too high now for him to pass up. "We know this issue energizes the religious right," Koppelman says, "and it has a proven track record of getting people to show up at the polls."
Before the campaign ads begin, there is still at least one major unresolved issue in California. Over the past several months, conservative groups in the state have collected more than 1.1 million signatures for an initiative that will likely appear on the November ballot that would amend the state Constitution and outlaw same-sex marriage, undoing yesterday's decision. California is a liberal state, but there are many voters here who are uncomfortable with what the court has done. Proposition 22, after all, was passed by a substantial majority, although polls show voters are split closer to 50-50 on the subject now. The ballot measure might be the last stand for some conservatives. "Thanks to the more than 1 million Californians who signed petitions, these out-of-touch California judges will not have the last word on marriage," says Brian Brown, executive director of the National Organization for Marriage California. "California voters will."
With yet another showdown looming this fall, same-sex marriage supporters were surprised yesterday to find themselves with at least one new, and unlikely, ally. As soon as the decision was announced, Gov. Arnold Schwarzenegger, who has twice vetoed legislation that would have legalized marriage in the state—claiming both times that he was awaiting the Supreme Court's decision—said he would oppose the new initiative. "I respect the court's decision, and as governor, I will uphold its ruling," he said. "Also, as I have said in the past, I will not support an amendment to the Constitution that would overturn this state Supreme Court ruling."