by Susan Brinkmann
Staff Writer
(May 16, 2008) The California Supreme Court overturned two state laws limiting marriage to unions between a man and a woman and ruled that same-sex couples have a constitutional right to marry. Unless the court grants a stay within 30 days, the ruling will make California the second state in the U.S. to allow same-sex marriage.
In a 4-3 decision, Chief Justice George wrote in the majority opinion: “In view of the substance and significance of the fundamental constitutional right to form a family relationship, 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.”
In the dissenting opinion, Justice Marvin R. Baxter called the decision “legal jujitsu.”
“I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry,” he wrote. “In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error. . . . I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference.”
Also dissenting was Justice Carol A. Corrigan who 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.”
Opponents of the ruling are planning to ask the court to grant a stay until the people are permitted to vote on the matter in November. Petitions have already been submitted to place a state constitutional marriage amendment on the ballot, a measure that is expected to pass.
Proponents of same-sex marriage began celebrating as soon as the decision was announced, however. “This decision will give Americans the lived experience that ending exclusion from marriage helps families and harms no one,” said Evan Wolfson, executive director of Freedom to Marry, to the New York Times.
San Francisco Mayor Gavin Newsom, who allowed same-sex couples to marry for a few months in 2004, called the ruling a “bold and important step forward to end discrimination in California.”
Talk show host Ellen DeGeneres immediately announced plans to marry her lover, Portia de Rossi (Nip Tuck and Ally McBeal) as a result of the decision.
Opponents have been just as bold in voicing their opposition to the ruling.
“The court was wrong from top to bottom on this one,” said Maggie Gallagher, president of the National Organization for Marriage, to the New York Times. “The court brushed aside the entire history and meaning of marriage in our tradition.”
Family Research Council president Tony Perkins called the decision “outrageous” because it not only overturned the historic definition of marriage, but also defied the will of the people of California who voted overwhelmingly in support of the state’s Defense of Marriage Act in 2000.
“The California Supreme Court has taken a jackhammer to the democratic process, and the right of the people to affect change in public policy,” Perkins said. “Four judges discarded the votes of 4,618,673 Californians who approved the state’s ‘Defense of Marriage Act.’”
Matthew D. Staver, Chief Counsel of Liberty Counsel, a public interest law firm that defends traditional marriage, who presented oral arguments in the case, said the ruling defies logic.
“It is a gross departure from the rule of law. It is outrageous. Traditional marriage is common sense. Yet, this decision is nonsense. No matter how you stretch California’s Constitution, you cannot find anywhere in its text, its history, or tradition that now, after so many years, it magically protects what most societies condemn. Same-sex marriage is not part of our history nor is it woven in the fabric of fundamental freedom. The California Supreme Court has defied logic, undermined the will of the people, and weakened our future.”
Dana Perino, President Bush’s press secretary, said the ruling illustrates why a federal constitutional marriage amendment is necessary.
“Today’s decision by the California Supreme Court illustrates that a federal constitutional amendment is the best way for the people to decide what marriage means,” she said. “President Bush remains firmly committed to protecting the sanctity of marriage.”
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