Gay marriage victory in California Supreme Court 

California's Supreme Court ruled on 15 May 2008 that it was unconstitutional for the state to deny marriage licences to same-sex couples, effectively opening the door to matrimony for an estimated 100,000 couples resident there.

It was a split vote. The 4-3 decision, written by Chief Justice Ronald George, said the constitution "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."

California's existing domestic partnership law, while providing most of the same legal rights as enjoyed by married couples, are not a good enough substitute, the court pronounced.

The California Supreme Court in session

 
Since marriage is a state matter, this decision cannot be appealed to the US Supreme Court. It is thus final.

"I respect the court's decision and as governor, I will uphold its ruling," Governor Arnold Schwarzenegger said within minutes of the ruling. "Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

Anti-gay groups had threatened that should the court decision go against them, they would fight for a constitutional amendment to be put on the ballot this November. After hearing the Supreme Court decision, Ron Prentice, executive director of the California Family Council, reaffirmed this plan, saying that his group expects "that with the November ballot we will have the opportunity for the people of California to once again define marriage as only between a man and a woman and this time place it into California's constitution which would strengthen it and keep it out of the hands of the courts."

Protestors outside the court
 

California now joins Massachusetts as the only states in the US that offer full marriage to same-sex couples. Five other states -- Vermont, Connecticut, New Jersey, Hawaii and Maine -- have established either civil unions or domestic partnership laws that provide many of the benefits of marriage.

It was San Francisco Mayor Gavin Newsom who kickstarted this issue by ordering, in February 2004, his City Hall officials to issue marriage licences to same-sex couples. About 4,000 couples took up the offer in a never-before-seen wedding spree, only to be disappointed when the same Supreme Court quickly intervened, ruling unanimously that the mayor had overstepped his authority. In a separate 5-2 vote, the court also decided to nullify the licences issued.

However, the Supreme Court went to great lengths to emphasize that its decision was concerned only with the power of a local official to flout statewide laws, not the broader question of whether California's ban on gay marriage was unconstitutional. "Our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue," Chief Justice George wrote for the court.

Naturally, a few couples sued. A year later, these cases, by then consolidated into one, got its first victory. In March 2005, Superior Court Judge Richard Kramer -- a Republican -- found that California violated the equal protection rights of gay couples by not allowing them to marry, rejecting the state's arguments for maintaining a gay marriage ban. "Simply put," Kramer wrote, "same-sex marriage cannot be prohibited solely because California has always done so before."

 
Overturned on appeal

Half a year later, in October 2005, victory turned into defeat. In a 2-1 decision, a panel of the 1st District Court of Appeals overturned Kramer's ruling. It concluded that state laws limiting marriage to heterosexual couples were constitutional and did not deprive gay or lesbian couples of a "vested fundamental right."

Justice William McGuiness said that because same-sex marriage had never been recognized as a right in California, "courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental institution as marriage."

While conceding that courts previously had held that marriage of opposite-sex partners was a fundamental right, McGuiness maintained that "no authority binding on us -- from California appellate courts to the United States Supreme Court -- has ever held or suggested that individuals have a fundamental constitutional right to enter the public institution of marriage with someone of the same sex."

"California law does not literally prohibit gays and lesbians from marrying. However, it requires those who do to marry someone of the opposite sex," he said.

In a ringing dissent, Justice J. Anthony Kline assailed the majority's reasoning: "The state has not even claimed, let alone shown, that same-sex marriage conflicts with any legitimate interest it has in preserving and strengthening the institution of marriage."

"Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

Anthony was alluding to the 1948 decision by the California Supreme Court to overturn the ban on inter-racial marriage -- the first state in the US to do so. Then too, California made history.

McGuiness however said changing the law to recognize same-sex marriage should be up to the California Legislature.

And indeed the California legislature, where the Democrats have a majority, did that -- twice since 2005. However, on both occasions, Governor Schwarzenegger (Republican) vetoed the bills, saying voters or the courts should decide the issue.

The issue was also complicated by Proposition 22, a measure approved by 61% of California voters in 2000, which set out that "only marriage between a man and a woman is valid and recognized in California." The new decision by the court would also have the effect of invalidating Proposition 22.

 
To the California Supreme Court

Oral hearings were held on 4 March 2008 before the seven-member Supreme Court. Six of the justices had been appointed by Republican governors, one by a Democratic governor, and so the odds for the pro-gay side didn't look good.

Representing the City of San Francisco, Attorney Therese Stewart told the court, "Once the state has entered into the business of regulating marriage, it has to do so on an equal basis."

However, California State attorneys defending existing laws requiring marriage to be between a man and a woman said that opposite-sex marriage was deeply rooted in tradition. In any case, the state already offered domestic partnership, which provided nearly equal rights. Deputy California Attorney General Christopher Krueger argued, "We submit that when the state is acting so aggressively to protect the lives of domestic partners and protect their families, it is not irrational to retain a definition of marriage that goes back in tradition."

The judges gave away little of their thinking during their hearing, asking probing questions of both sides, though the side opposing same-sex marriage seemed to get the sharper questions.

When Glen Lavy, representing the Campaign for California Families, argued that opposite-sex marriage was better for children, Chief Justice George interjected: "Why is it that the state allows same-sex couples to adopt and raise children?"

Turning to Matthew Staver, who represented the Proposition 22 Legal Defense and Education Fund, the Chief Justice asked, citing a study that 32 percent of lesbian couples have children: "You're not suggesting that lesbian couples are unfit parents?"

Staver answered, "Not at all," but said the state had legitimate reasons for supporting procreation and "genetic affiliation" for children within opposite-sex marriage.

Other excerpts:

Glen Lavy: "I believe that Prop 22 controls the public policy on marriage in California. … All power of the government resides with the people."

Justice Ronald George: "But isn’t the ultimate expression of the people’s will the constitutions, both federal and state, that they have adopted?"

Lavy: "People are the ultimate arbiter of power."

George: "Subject to judicial review."

Lavy: "Subject to judicial review."

*

Justice Joyce Kennard: "You have argued that defining marriage between a man and a woman promotes an optimal environment for the rearing of children. … Is it your view that same-sex couples are not as good at parenting as opposite-sex couples?"

Staver: "We may all have different views on that. … But the legal issue is not whether that’s an optimal environment. … The state has a legitimate interest in integrating the sexes, not segregating them. … I think there are number of studies that suggest children do best when raised by their genetic biological parents."

*

Justice Kennard: "My question is, what adverse social consequences you would foresee if we were to disagree with your view?"

Staver: "I think it would undermine opposite sex marriage. Like sodium and chlorine … becoming salt. … You can’t separate those and give it the same title."

Justice Carol Corrigan: "I’m finding that argument to be a little elusive … How would this undermine opposite-sex marriage?"

Staver: "It would lose its meaning. Marriage is important because it transcends human societies. It would create a new system that is no longer recognizable as marriage."

Justice George: "Would it deprive people of their rights, opposite-sex couples?"

Staver: "I don’t know if it would deprive them of their rights. … In the Netherlands, the institution has started to disintegrate."

Justice Kennard: "And in Canada, Belgium, Spain and South Africa too?"

Staver: "We don’t know the consequences of this [in all those countries]."

* * * * *

Now the gap between Singapore and the modern world widens further. We passed up on an opportunity to close the gap a little when we refused to repeal Section 377A last year. As Californians start to see same-sex marriage as a very ordinary civil right -- and needless to say, the West Cost state is a major trade and investment partner for us -- questions will definitely be raised as to how we're going to accommodate same-sex married Californians when we want to woo them to work here. Or for that matter, how we're going to woo Singaporeans back when they've married in California.

It would be highly inconsistent to recognise those marriages when we consider the consummation of the gay male half of such marriages a crime. But if we don't recognise those marriages (and the couples' rights to their children), are we going to be an attractive relocation?

I suppose some loophole will be found to accommodate spouses and children when they want to move to Singapore with the expatriate professional, all done very quietly so as not to upset the religious fundamentalists. But it's not a solution we should be happy with. This habit of quietly bending the rules or finding loopholes ultimately erodes the integrity and predictability of laws and regulations.

Worse, it leaves a seed for corruption to take root, for what is going to ensure that in future, our civil servants won't start to ask for a little grease to motivate them to find a loophole for you?

© Yawning Bread 

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