Gay marriage OK, says supreme court

Same sex couples have a constitutional right to marriage, according to a Thursday ruling by the California State Supreme Court.

The court’s 4-3 decision strikes down previous laws defining marriage as between a man and a woman.

“In contrast to earlier times,” wrote Chief Justice Ronald M. George in his 121-page opinion, “our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights.“

The court majority found that all couples should be treated equally under state law.

“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,” George said.

The ruling specifically nullifies Proposition 22, a voter passed initiative that went into effect in 2000. The proposition limited the legal definition of marriage to between a man and a woman.

Same-sex marriage advocates had been eagerly awaiting the court’s decision on the matter, which consolidated six separate lawsuits into In re Marriage Cases.

“When I opened [the decision], when I finally discovered how big the ruling had been for us, I just wept like a baby,“ said Sarah Asplin.

Asplin, the outgoing student body president at the UC Davis School of Law, is the first openly gay or lesbian president the law school has had.

“[This] is an unbelievably exciting decision and will have a more sweeping impact than laypeople might realize,” she said.

The law makes gay community members more legally protected in general, Asplin said.

“The opinion makes gays and lesbians a suspect class under the California Constitution,” she said.

Why is that significant?

“The reason this is such a big deal is that there are very few suspect classes. The only two big ones are race and sex in California. This makes gays and lesbians on the same footing as race,” she said.

“What that means is when you’re talking about equal protection for minority groups. If the group is given the term suspect class, it makes it very difficult for anyone to make any laws that discriminate based on sexual orientation or class identity.“

Courtney Joslin, a professor at the UC Davis School of Law, said that the court raised the standards for future such laws.

“The court did say that classifications based on sexual orientation must now be subjected to the highest level of scrutiny,” she said.

The dissenting voices on the court were led by Justice Marvin Baxter.

“The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case, and I actually agree with several of the majority’s conclusions,” he wrote in a concurring dissenting opinion.

“However, I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error,” he said.

Justice Baxter notes in his concurring-dissenting opinion that the majority relied on legislative developments to make the case for overturning the proposition.

The state legislature is not allowed to repeal an initiative statute, such as the one in the proposition, unless the statute explicitly states otherwise.

The majority of the court though, decided that through the formation of other statutes that expanded the rights of gays and lesbians throughout the state, the legislature gave “explicit official recognition” to a California right of equal treatment, effectively invalidating the section of law restricting same-sex marriage.

“Obviously there’s a fundamental disagreement,” said Joslin, who has served as an attorney at the National Center for Lesbian Rights, where she litigated cases on behalf of lesbian, gay, bisexual and transgender people for their families.

“The majority says there’s nothing the legislature has done that controls the development of this case. In [Justice Baxter’s] opinion, the court did rely on these legislative developments. In doing so he takes the position that the court inappropriately allowed the legislature to affect its decision,” she said.

California Governor Arnold Schwarzenegger said he would not contest the result of the case.

“I respect the court’s decision and as governor, I will uphold its ruling,” he said in a statement. “As I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.“

Previous attempts to pass gay-marriage bills through the legislature have been vetoed by Schwarzenegger.

Those in the gay and lesbian community have been positive about the decision.

“I think it’s wonderful. I think it’s such a landmark decision that shows the progress that the movement has made nationwide,” said Christopher Guerrero, northwest regional chair for the Delta Lambda Phi fraternity, the only national fraternity for gay men.

The court’s ruling came as a surprise to Guerrero, a UC Davis alumnus who graduated in June 2007.

“I was kind of shocked. We’d kind of heard through a little bird that a clerk of the court had quit yesterday, so we were bracing ourselves for a decision not in our favor,” he said.

The impacts of the court’s ruling are already being felt on a local level.

Shelly Bailes, 67, and Ellen Pontac, 66, have been in a committed relationship for the past 34 years. The two have worked extensively within the community for the advancement of gay rights.

“We’re just really overjoyed that the Supreme Court has done the right thing and the fact that the majority of the justices were appointed by Republican governors says so much,” Pontac said. “It’s hard to explain the feeling of joy, inclusion and love. It’s just wonderful.“

The couple, who moved to Davis in 1981, spent the early part of Thursday celebrating the decision on the steps of the Supreme Court building in San Francisco.

Both Pontac and Bailes are co-heads of the local chapter of Marriage Equality USA, a group dedicated to fighting for same-sex marriages, as well as organizing Gay Pride Day in Davis for the past 10 years.

While the two married in February 2004 as recipients of one of thousands of same-sex marriage licenses issued by the city of San Francisco, the licenses were ultimately invalidated by the Court, who said city officials had exceeded their authority.

Thursday’s decision, however, rejuvenated the couple’s marriage plans.

“All I can say is that I have breaking news: we are getting married!” Bailes said, noting that they will have to wait a little bit longer.

California rules of procedure require that there be a minimum period of 30 days before the implementation of court decisions.

The couple articulated concerns about whether or not anti-gay groups would push to place a measure on the November ballot banning same-sex marriages.

“I personally feel that they will have to take away a right that we already have which is going to be very difficult for them,” Bailes said. “They’re putting a lot of money in this and I think it would be a Christian thing to do to stop this ridiculousness and put the money towards our schools which are really suffering.“

Still, both believed this prospect would not put a damper on the current celebration because of the decision.

“We probably plan on celebrating for quite some time,” Pontac said.

The Unitarian Universalist Church of Davis has performed many of same-sex religious ceremonies, said Mandy Dawn, office administrator for the church.

“They’re probably almost as common as [heterosexual] ceremonies,” she said. “We offer religious ceremony services for same or opposite gender couples and now that it is legally binding, we would be offering legal marriage to both groups.“

The decision is being hailed as a landmark case.

“I certainly think this is a historic decision,” said Joslin, former executive editor of the Harvard Civil Rights-Civil Liberties Law Review. “Likely its impact will be felt beyond the borders of California.“

CHINTAN DESAI contributed to this article. He and RICHARD PROCTER can be reached at campus@californiaaggie.com.