Same-sex couples have a constitutional right to marry, the California Supreme Court ruled Thursday.
Definition of Marriage Is at Heart of California Case (March 5)
The court’s 4-to-3 decision, striking down two state laws that had limited marriages to unions between a man and a woman, will make California only the second state, after Massachusetts, to allow same-sex marriages. The decision, which becomes effective in 30 days, is certain to be an issue in the presidential campaign.
“In view of the substance and significance of the fundamental constitutional right to form a family relationship,” Chief Justice Ronald M. George wrote of marriage for the majority, “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”
California already has a strong domestic partnership law that gives gay and lesbian couples nearly all of the benefits and burdens of heterosexual marriage. The majority said that is not enough.
Given the historic, cultural, symbolic and constitutional significance of the concept of marriage, Chief Justice George wrote, the state cannot limit marriage to opposite-sex couples. The court left open the possibility that the Legislature could use another term to denote state-sanctioned unions so long as that term was used across the board for all couples.
The state’s ban on same-sex marriage was based on a law enacted by the Legislature in 1977 and a statewide initiative approved by the voters in 2000, both defining marriage as limited to unions between a man and a woman. The question before the court was whether those laws violate provisions of the state Constitution protecting equality and fundamental rights.
Conservative groups have proposed a new initiative, this one to amend the state constitution, to ban same-sex marriage. If it is allowed onto the ballot and approved by the voters, Thursday’s decision would be overridden.
In 2004, San Francisco issued marriage licenses to thousands of same-sex couples until the courts put a halt to the practice. The state Supreme Court ultimately voided the licenses, saying that city officials had exceeded their authority. Thursday’s decision did not appear to affect the voided licenses.
Justice Marvin R. Baxter, dissenting, said the majority had should have deferred to the state Legislature on whether to allow same-sex marriage, particularly given the increased legal protections for same-sex couples enacted in recent years.
“But a bare majority of this court,” Justice Baxter wrote, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves.”
Justice Carol A. Corrigan, also dissenting, wrote that her personal sympathies were with the plaintiffs challenging the bans on same-sex marriage. But she said the courts should allow the political process to address the issue.
“We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root,” Justice Corrigan wrote. “If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”
The California Supreme Court was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The United States Supreme Court did not follow suit until 1967.
Thursday’s decision was rooted in two rationales, and both drew on the Perez decision.
The first was that marriage is a fundamental constitutional right. “The right to marry,” Chief Justice George wrote, “represents the right of an individual to establish a legally recognized family with a person of one’s choice and, as such, is of fundamental significance both to society and to the individual.”
Chief Justice George conceded that “as an historical matter in this state marriage has always been restricted to a union between a man and a woman.” But “tradition alone,” the chief justice continued, does not justify the denial of a fundamental constitutional right. Bans on interracial marriage were, he wrote, sanctioned by the state for many years.
The court also struck down state laws banning same-sex marriage on equal protection grounds, adopting a new standard of review in the process.
With few exceptions, courts considering suits from gay men and lesbians claiming legal discrimination of all sorts have applied a relaxed standard of scrutiny under which the government must show only that the challenged law had a rational basis.
In Thursday’s decision, the Supreme Court ruled that the correct standard of review for plaintiffs claiming discrimination on the basis of sexual orientation is “strict scrutiny,” the standard used in race-discrimination cases. Under that standard, the government must demonstrate that it has a compelling interest for the law it is defending and that the distinctions drawn by the law are necessary to protect the interest.
Lawyers for state identified two interests that they said justified reserving the term marriage for heterosexual unions: tradition and the will of the majority. Chief Justice George said neither was sufficient.
Chief Justice George too pains to emphasize the limits of the majority’s ruling. It does not require ministers, priests or rabbis to perform same-sex marriages, he said.
“No religion will be required to change its religious policies or practices with regard to same-sex couples,” Chief Justice George wrote, “and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”
He added that the decision “does not affect the constitutional validity of the existing prohibitions against polygamy and the marriage of close relatives.”
Other state supreme courts to consider the question of same-sex marriage in recent years, including those in New York, New Jersey and Washington, have been closely divided but stopped short of striking down state laws forbidding it. A decision of the Connecticut Supreme Court is expected shortly.
