Breaking News. The California Supreme Court becomes the second state supreme court to hold that the state Constitution bars a ban on same sex marriage. The New York Times has the details:
The California Supreme Court has overturned a ban on gay marriage, paving the way for California to become the second state where gay and lesbian residents can marry.
The justices released the 4-3 decision Thursday, saying that domestic partnerships are not a good enough substitute for marriage in an opinion written by Chief Justice Ron George.
The cases were brought by the city of San Francisco, two dozen gay and lesbian couples, Equality California and another gay rights group in March 2004 after the court halted San Francisco's monthlong same-sex wedding march that took place at Mayor Gavin Newsom's direction.
Read it all here. The full opinion is here. A summary of the rationale from the opinion is here:
A number of factors lead us to this conclusion. First, the exclusion of
same-sex couples from the designation of marriage clearly is not necessary in
order to afford full protection to all of the rights and benefits that currently are
enjoyed by married opposite-sex couples; permitting same-sex couples access to
the designation of marriage will not deprive opposite-sex couples of any rights and
will not alter the legal framework of the institution of marriage, because same-sex
couples who choose to marry will be subject to the same obligations and duties
that currently are imposed on married opposite-sex couples. Second, retaining the
traditional definition of marriage and affording same-sex couples only a separate
and differently named family relationship will, as a realistic matter, impose
appreciable harm on same-sex couples and their children, because denying such
couples access to the familiar and highly favored designation of marriage is likely
to cast doubt on whether the official family relationship of same-sex couples
enjoys dignity equal to that of opposite-sex couples. Third, because of the
widespread disparagement that gay individuals historically have faced, it is all the
more probable that excluding same-sex couples from the legal institution of
marriage is likely to be viewed as reflecting an official view that their committed
relationships are of lesser stature than the comparable relationships of opposite-sex
couples. Finally, retaining the designation of marriage exclusively for opposite sex
couples and providing only a separate and distinct designation for same-sex
couples may well have the effect of perpetuating a more general premise — now
emphatically rejected by this state — that gay individuals and same-sex couples
are in some respects “second-class citizens” who may, under the law, be treated
differently from, and less favorably than, heterosexual individuals or opposite-sex
couples. Under these circumstances, we cannot find that retention of the
traditional definition of marriage constitutes a compelling state interest.
Accordingly, we conclude that to the extent the current California statutory
provisions limit marriage to opposite-sex couples, these statutes are
What is critically important about this decision is that California already recognized civil unions. The opinion concludes that this is not enough for marriage equality under substantive due process.
While the decision will undoubtedly improve the lives of thousands of same sex couples and their children in California, I must admit to having serious concerns about the judicial route toward marriage equality. There is an effort in Arizona to place a same sex marriage ban in the Arizona Constitution, and the California decision will undoubtedly increase the likelihood that this effort will succeed. While it takes more time, I think that the political route, rather than the judicial route, is more likely to result in lasting change. The irony is that the California Legislature itself approved full marriage equality, which was vetoed by the Governor. This suggests that a political strategy could have been successful in the near term.
There is a great deal about this decision on various blogs. A discussion is already underway at the Lead here. Andrew Sullivan, of course, is already all over this decision here, here and here.