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Same-Sex Marriage Ban Lifted in California

On Thursday, May 15, the California State Supreme Court struck down the state’s ban on same-sex marriage. The 4–3 decision ends a contentious legal battle between the state and 14 same-sex couples who sued after they were denied marriage licenses under the Defense of Marriage Act (DOMA) or Proposition 22; a 2000 referendum that limited marriage to only opposite-sex couples in 2000. The plaintiffs were represented by Lambda Legal, the National Center for Lesbian Rights (NCLR), the American Civil Liberties Union (ACLU), Equality California (EQCA), and Our Family Coalition.
 
In writing for the majority of the Court, Chief Justice Ronald George concluded that a ban on same-sex marriage violated a California constitutional right to form a family relationship. “We therefore conclude that … 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 his dissenting opinion, Associate Justice Marvin Baxter wrote that although he agrees with the Court’s conclusion, he thought the other Justices were overstepping their bounds in striking down a ban that should be left to the voters. The ruling will allow same-sex couples to marry beginning on June 17. Same-sex marriages in California will not replace or dissolve domestic partnerships—the state’s current legal recognition for same-sex couples—but instead will be an additional alterative for recognition in the state (see EQCA’s Marriage for Same-Sex Couples in California). Oral arguments and the full decision of In Re Marriage Cases (S147999) can be found here.
 
California will become the second state in the country that allows same-sex couples to marry; Massachusetts, the first and, thus far, only other state that allows same-sex couples to marry, made its decision in 2004.  Despite these state gains, the federal government does not recognize same-sex marriage in any state under its own version of DOMA that has been in place since 1996 (PL104-199). In addition, under the federal DOMA, states are not required to recognize same-sex marriages performed in other states.  Many states have passed their own legislation or constitutional amendments barring same-sex marriage.
 
Several state officials in California, including Mayor Gavin Newsome of San Francisco, who permitted his city clerk to marry same-sex couples in San Francisco back in 2004[i] and Governor Arnold Schwarzenegger, who personally is against same-sex marriage but does not support a constitutional amendment banning the act, have publicly affirmed the Court’s decision. Democratic presidential candidates Senator Barack Obama and Senator Hilary Clinton support some form of legal recognition of same-sex partnerships that carries the same rights and benefits of marriage but do not support calling it marriage. Republican presidential candidate, Senator John McCain, opposes full recognition of same-sex partnerships but opposes a constitutional amendment banning same-sex marriage in the U.S. Constitution.
 
Groups opposing the decision are waging a campaign to reverse it by placing a voter initiative on the 2008 November ballot to ban same-sex marriage in the state’s constitution. Issues of family law, including the right to marry, are the sole responsibility of the states and not subject to federal interference, and therefore the parties cannot appeal to the U.S. Supreme Court in this matter. The ballot measure campaign is being spearheaded by the Concerned Women of America.


[i] “Mayor Defends Same-Sex Marriages: San Francisco Will Resume Issuing Marriage Licenses Monday.” CNN 22 February 2004, accessed 30 May 2008, <http://www.cnn.com/2004/LAW/02/22/same.sex/index.html>.

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