California high court overturns gay marriage ban

Thursday's ruling makes it the second state to legalize same-sex marriage.

from the May 16, 2008 edition

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Californians have split nearly evenly for years on the question. In June 2007, 45 percent favored allowing gay marriage and 49 percent opposed it, according to the Public Policy Institute of California (PPIC).

"Democrats are strongly in favor, Republicans are strongly opposed. It's a very sharp political divide on this question," says Mark Baldassare, PPIC president.

The case arose from San Francisco Mayor Gavin Newsom's instruction to the city clerk in 2004 to issue marriage licenses for same-sex couples. In the month that followed, nearly 4,000 same-sex couples got married before California's high court stepped in to halt the marriages and ultimately nullify them.

That brought lawsuits from some of the couples. The trial court found that codes barring same-sex marriages violated equal protection guarantees in the state's constitution. An appeals court reversed the decision, saying legal discrimination could be avoided through domestic partnership arrangements.

Writing for the majority in Thursday's ruling, Chief Justice Ron George found "that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples."

Gay marriage opponents are incensed. "On a 4-3 vote, the California Supreme Court has destroyed the civil institution of marriage between a man and a woman," said Randy Thomasson, president of Campaign for Children and Families. "This arrogant judicial activism took 121 pages of contorted logic to explain ... [and] should be short-lived."

Public support nationally for gay marriage grew steadily throughout the late 1990s and into the early part of this decade. That changed in 2003, following the US Supreme Court's ruling in Lawrence and Garner v. Texas, which struck down laws against sodomy. Then the Massachusetts Supreme Court legalized gay marriage in the state.

These decisions raised the visibility of the issue and rallied opponents, says Mr. Doherty with Pew. From July 2003 to February 2004, support nationally for gay marriage dropped from 38 percent to 30 percent, and opposition spiked 10 points to 63 percent.

In response to the court actions, activists placed measures to ban gay marriage on the November 2004 ballots in 11 states. Some – most notably Ohio – occurred in key battleground states in the presidential election.

These ballot initiatives helped mobilize voters who were more likely to vote for President Bush, according to research by Todd Donovan, a political scientist at Western Washington University.

"Other issues may have kept Bush even with [Democrat John] Kerry in Ohio, but gay marriage may very well have put Bush over the top in the state," Dr. Donovan found.

More than half the states have amended their constitutions to prohibit same-sex marriages. And three state supreme courts have ruled against a constitutional right to gay marriage. Connecticut's high court is expected to rule on the issue within months.

"No state is immunized categorically or as a settled matter to California marriages today. They may think they are," says Mr. Kmiec, "but I don't think they are free from legal challenge."

States that actually amended their constitution, as opposed to passing a statute, will have a greater likelihood of sustaining their rejection of California marriages, he says.

 

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