Friday, May 16, 2008
Wooopppeeeee!!! Connecticut is next!
And then - NEW JERSEY!
For a long time, the buzz here has been that once California overturned the ban on same sex marriage, the Connecticut Supreme Court would follow and the next state after that to grant the constitutional right of marriage to same sex couples will be New Jersey.
Time has proven that Domestic Partnership is clearly not enough. Civil Union has proven to be a complicated legal disaster. And the two together have caused the kind of confusion only two attorneys trying to interpret the law can create.
One of my dear friends lost his beloved of 48 years last year. They had a domestic partnership. Their attorney (like ours) informed them that they didn't need to have a Civil Union; that for their purposes, their current legal arrangement was perfectly fine.
However, as the old saying goes in clerical circles, "Where there's a will, there's a relative." Yup, you guessed it. A relative of the deceased is now claiming rights to the inheritance because "civil union" canceled out "domestic partnership."
The case is being contested and may even go to trial because well, his attorney says it makes the case for an end to "separate but equal" and further promotes the argument for same sex marriage.
Meanwhile, my friend's grief is prolonged and his life remains unsettled.
Makes you wonder how history will report this time in our lives.
Congratulations, California! Make way for Connecticut! Here comes New Jersey!
Working for justice and equality, one state at a time.
May 16, 2008
California Supreme Court Overturns Gay Marriage Ban
By ADAM LIPTAK
The California Supreme Court, striking down two state laws that had limited marriages to unions between a man and a woman, ruled on Thursday that same-sex couples have a constitutional right to marry.
The 4-to-3 decision, drawing on a ruling 60 years ago that struck down a state ban on interracial marriage, would make California the second state, after Massachusetts, to allow same-sex marriages.
The decision, which becomes effective in 30 days unless the court grants a stay, was greeted with celebrations at San Francisco City Hall, where thousands of same-sex marriages were thrown out by the courts four years ago.
It was denounced by religious and conservative groups that promised to support an initiative proposed for the November ballot that would amend the California Constitution to ban same-sex marriages and overturn the decision.
Same-sex marriage has been a highly contentious issue in presidential and Congressional elections, but it was not immediately clear what role the ruling would have this year. The Democratic and Republican candidates for president have all said they believe marriage should be between a man and a woman, but Republicans could use a surge in same-sex marriages in the most populous state to invigorate conservative voters.
Given the historic, cultural, symbolic and constitutional significance of marriage, Chief Justice Ronald M. George wrote for the majority, the state cannot limit its availability to opposite-sex couples.
“In view of the substance and significance of the fundamental constitutional right to form a family relationship,” Chief Justice George wrote, “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.”
Supporters of same-sex marriage called the ruling a milestone.
“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, who noted that same-sex marriages were legal in Belgium, Canada, the Netherlands, South Africa and Spain.
Opponents said they expected the proposed ballot initiative, which has been submitted to election officials with more than one million signatures, to pass in November.
“The court was wrong from top to bottom on this one,” said Maggie Gallagher, president of the National Organization for Marriage. “The court brushed aside the entire history and meaning of marriage in our tradition.”
About 110,000 same-sex couples live in California, according to census data. The state has a strong domestic partnership law that gives couples who register nearly all of the benefits and burdens of heterosexual marriage.
A majority of the justices said that was not enough.
The court left open the possibility that the Legislature could use a term other than “marriage” to denote state-sanctioned unions, so long as that term was used across the board for opposite-sex and same-sex couples.
The ban on same-sex marriage was based on a law enacted 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 violated provisions of the state’s Constitution protecting equality and fundamental rights.
Mathew D. Staver, a lawyer with Liberty Counsel, a public interest firm that defends traditional marriage, said it would ask the court to stay its decision until the November election, meaning that the decision could be overturned before becoming effective.
“It would only be logical” to grant a stay, Mr. Staver said, given the confusion that would arise if same-sex marriages were available for a few months.
Gov. Arnold Schwarzenegger, a Republican, said in a statement that he respected the ruling and did not support a constitutional amendment to overturn it.
In a dissent, Justice Marvin R. Baxter said the majority should have deferred to the 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.”
Also dissenting, Justice Carol A. Corrigan wrote that her personal sympathies were with the plaintiffs challenging the bans on same-sex marriage. But Justice Corrigan said the courts should allow the political process to address the question.
“We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root,” she 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 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 vote in Perez, like the one in Thursday’s decision, was 4 to 3. The United States Supreme Court did not follow suit until 1967.
At present, six of the seven justices on the California court, including all the dissenters, were appointed by Republican governors.
The decision was rooted in two rationales, and both drew on the Perez case.
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,” he 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.
In a second rationale from the interracial case, the court struck down the laws banning same-sex marriage on equal protection grounds, also adopting a new standard of review in the process.
When courts weigh whether distinctions among people or groups violate the right to equal protection they generally require just a rational basis for the distinction, a relatively easy standard to meet. But when the discrimination is based on race, sex or religion, the courts generally require a more substantial justification.
Discrimination based on sexual orientation, the majority ruled on Thursday, also requires that sort of more rigorous justification. The court acknowledged that it was the first state high court to adopt the standard, strict scrutiny, in sexual orientation cases.
Lawyers for the state identified two interests to justify reserving the term marriage for heterosexual unions — tradition and the will of the majority. Chief Justice George said neither was sufficient.
Still, Chief Justice George took pains to emphasize the limits of the ruling. It does not require ministers, priests or rabbis to perform same-sex marriages, he said.
He added that the decision did “not affect the constitutional validity of the existing prohibitions against polygamy and the marriage of close relatives.”
Other state high 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 from the Connecticut Supreme Court is expected shortly.