California justices overturn gay marriage ban

Chris Rizo May 15, 2008, 12:32pm

Chief Justice Ronald George

Associate Justice Carol Corrigan

SAN FRANCISCO, Calif. (Legal Newsline)-The California Supreme Court on Thursday overturned the state ban on same-sex marriage, marking a major victory for gay rights advocates.

In its 4-3 decision, the high court found that California's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship," Chief Justice Ronald George wrote for the majority.

"We determine that ... the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples," he wrote.

Concurring in the decision were Associate Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno. Dissenting was Associate Justice Ming Chin. Concurring and dissenting were Associate Justice Carol Corrigan and Marvin Baxter.

"The California Constitution says nothing about the rights of same-sex couples to marry," Baxter wrote. "On the contrary, as the majority concedes, our original constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex."

The court's decision came as conservatives and some religious groups are seeking to place into the state constitution a ban on gay marriage. If the marriage measure qualifies for the ballot and is approved by voters, it will supersede Thursday's ruling.

"The ruling today is very disappointing," said Glen Lavy, senior counsel for the Alliance Defense Fund. "Unfortunately, as situations in other states have shown, marriage is not ultimately safe from tampering by activists and others in government until the voters have amended the constitution to define marriage as the union of one man and one woman."

Massachusetts, currently, is the only state to allow same-sex marriage, while Connecticut, New Hampshire, New Jersey and Vermont allow same-sex civil unions.

California offers gay and lesbian couples who register as domestic partners many of the legal rights and responsibilities once only given to married couples, including medical decision-making and hospital visitation rights.

In 2006, San Francisco Superior Court Judge Richard Kramer declared the state's same-sex marriage ban unconstitutional, but a state appeals court upheld the law.

The judges ruled that it was not the role of judges to legalize gay marriage, but the role of the state Legislature or voters to do so.

"We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root," Corrigan wrote in a separate opinion Thursday.

"If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box," she said.

For his part Republican Gov. Arnold Schwarzenegger has twice vetoed same-sex marriage bills, citing the overwhelming passage of Proposition 22.

From Legal Newsline: Reach reporter Chris Rizo by e-mail at

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