State's top court strikes down marriage ban Short-lived victory? November vote could write ban on same-sex marriage into state Constitution

The California Supreme Court struck a historic but possibly short-lived blow for gay rights Thursday, overturning a state law that allowed only opposite-sex couples to marry.

In a 4-3 ruling that elicited passionate responses on both sides of the debate and touched off celebrations at San Francisco City Hall - the scene of nearly 4,000 same-sex weddings four years ago that were invalidated months later - the court said the right to marry in California extends equally to all, gay and straight alike.

The state Constitution's guarantees of personal privacy and autonomy protect "the right of an individual to establish a legally recognized family with the person of one's choice," said Chief Justice Ronald George, who wrote the 121-page majority opinion. He said the 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 opposite-sex couples."

The conflict over same-sex marriage, in which public opinion and tradition are aligned against a minority group, is similar to the controversy the court confronted 60 years ago when it became the first in the nation to overturn a state ban on interracial marriage, George said.

Dissenters said the court had interfered with the democratic process and overstepped its bounds.

'Judicial fiat'

San Francisco Mayor Gavin Newsom walks out a press conferance in the City Hall rotunda after the California Supreme Court desistion giving Gays and lesbians constitutional right to marry in California with his fiancee Jennifer Siebel. Photographed in San Francisco, Calif, By Lance Iversen / San Francisco Chronicle. less San Francisco Mayor Gavin Newsom walks out a press conferance in the City Hall rotunda after the California Supreme Court desistion giving Gays and lesbians constitutional right to marry in California with his ... more Photo: LANCE IVERSEN Photo: LANCE IVERSEN Image 1 of / 24 Caption Close State's top court strikes down marriage ban 1 / 24 Back to Gallery

The majority "substitutes, by judicial fiat, its own social policy views for those expressed by the people," said Justice Marvin Baxter. He said a future "activist court" might invoke the ruling to legalize polygamous and incestuous marriages - a comparison rejected by George, who said the state has ample justifications to ban those marriages because of their harmful effect on families.

The high court - with a 6-1 majority of Republican appointees, including George - is the second in the nation after Massachusetts' to declare a right of same-sex couples to marry. It is the first high court to rule that the state's Constitution forbids all discrimination based on sexual orientation with the same strict type of prohibition that applies to bias based on race, sex or religion.

But in the debate over same-sex marriage, the voters are likely to have the last word.

Anticipating the possibility of Thursday's ruling, conservative religious groups have submitted more than 1.1 million signatures on petitions for an initiative that would enshrine the ban on same-sex marriage as a state constitutional amendment. That ban was first put in place as a law by the Legislature in 1977 and was reaffirmed by voters in 2000 as a ballot initiative.

The constitutional amendment will qualify for the November ballot if officials determine that at least 694,354 of the signatures are valid, a decision due by mid-June.

Majority approval needed

The amendment would need majority approval from voters to pass. It would overturn Thursday's ruling on the right to marry, although the section of the decision banning discrimination based on sexual orientation would remain in place.

The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts. Lawyers for the Campaign for California Families, which opposes same-sex marriage, hope to prevent that situation by asking the court to put its ruling on hold until the election.

If the court refuses to do so, the ruling will take effect in 30 days - on Saturday, June 14.

"This decision will ignite California voters to amend their state Constitution to protect marriage and prevent judges from wrecking marriage," said Mathew Staver, founder and chief lawyer at Liberty Counsel, which represents the Campaign for California Families.

Voters in at least 20 states have approved such amendments. The 2000 California initiative passed with 61 percent of the vote, but it was not a constitutional amendment.

Advocates hope for better

Gay-rights groups are hopeful that climate is changing, citing statewide opinion polls that have shown increased support, though less than a majority, for same-sex marriage rights. They also are counting on Gov. Arnold Schwarzenegger, who reiterated his opposition Thursday to a constitutional amendment that would overrule the court's decision.

Citing the ballot initiative approved eight years ago, Schwarzenegger vetoed bills in 2005 and 2007 that sought to legalize same-sex marriage. The bills were in response to the court's August 2004 ruling annulling the weddings that San Francisco Mayor Gavin Newsom had authorized six months earlier. The annulments were not affected by Thursday's ruling.

The mayor said he issued his order because he doubted the constitutionality of the state marriage law. While the court ruled that Newsom lacked authority to act, it did not rule on the validity of the law itself and said it would await proceedings in lower courts.

On Thursday, the court agreed with Schwarzenegger's assessment of the 2000 ballot measure and said it barred the Legislature from broadening marriage rights to same-sex couples without a vote of the people.

Marriage as institution

But the court majority rejected an array of legal justifications for excluding gays and lesbians from marriage, including religious conservatives' argument that same-sex matrimony would alter the definition of marriage and weaken the institution.

Allowing same-sex couples to marry "will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage," George said.

Addressing the same groups' related argument that marriage should be reserved for couples who can procreate, George said the right to marry "has never been limited to those who plan or desire to have children."

The chief argument offered in defense of the law by state Attorney General Jerry Brown and Schwarzenegger, who was represented separately, was that California is entitled to maintain a traditional definition of marriage while extending equality to gays and lesbians in every area of the law.

They cited state laws that provide marital benefits such as inheritance, hospital visitation, community property and child support to registered domestic partners, most of them same-sex couples. The state is unable to provide federal marital benefits, such as joint federal income tax filing and Social Security survivors' rights, because those are governed by federal law.

A California appeals court agreed with that argument in 2006, but the state's high court said domestic partner laws kept gay and lesbian couples in a separate and lesser status.

Marriage is special

Marriage, George said, is not just a bundle of rights, but is a relationship uniquely honored by the state and society. Confining same-sex couples to a different category marks them with "second-class citizenship," the chief justice said.

As for the argument that marriage has historically been reserved for a man and a woman, George said that even the most widely accepted traditions "often mask an unfairness and inequality" that only the victims understand.

Dissenting justices said the courts should leave the definition of marriage to state lawmakers, who have substantial reasons - historic tradition and the will of the people - to preserve the status quo.

The majority "does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice," said Baxter, joined by Justice Ming Chin.

Noting the recent success of gay-rights groups in passing laws and winning public support, Baxter said they might soon have won marital rights through "the ordinary democratic process."

Those same developments, Baxter said, contradict the majority's unprecedented conclusion that gays and lesbians need the same constitutional protection from discrimination as racial and religious minorities.

Justice Carol Corrigan, Schwarzenegger's sole appointee to the court, said in a separate dissent that she personally believes "Californians should allow our gay and lesbian neighbors to call their unions marriages." But she said public opinion is to the contrary, at least for now, and should be allowed to run its course.

"When ideas are imposed," Corrigan said, "opposition hardens and progress may be hampered."