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California Supreme Court OKs Marriage for Gays - But It Ain't Over Yet

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That joyful noise you hear rumbling across America is the sound of equality applauding: today the California Supreme Court ruled 4-3 that lesbian and gay couples have the same constitutional right to marry as heterosexuals.

The decision could be overturned, however, if a constitutional amendment to ban same-sex marriage makes it onto the November ballot, as expected, and is passed by voters.

The right-wing reaction to the court's ruling from Karen England, executive director for the antigay Capitol Resource Institute, is typical. She said in a statement issued via email:

This is a very sad day for our nation and the democratic process. The people of California decided eight years ago that marriage in our state will be defined as between one man and one woman. 4 arrogant, elitist, activist judges decided that they know better than the people how marriage should be defined...We now must focus our energy on passing the Protect Marriage Initiative and place traditional marriage in the state constitution, This outrageous decision will electrify voters and we are certain they will once again choose to protect traditional marriage.

But California Gov. Arnold Schwarzenegger is on the winning side. Within minutes of the court ruling, he issued this statement:

I respect the Court's decision and as Governor, I will uphold its 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.

Even the normally more conservative "Blue Dog" Democrat, Sen. Dianne Feinstein recognized the ruling in a statement to this reporter:

The Court has affirmed that people of the same sex have the right to marry under the Constitution of the State of California. This makes the legal situation very clear. It's become apparent to me that the views of Californians are changing in this regard, and becoming much more favorable with respect to recognizing the social and economic bonds that marriage provides -- regardless of the sex of the individuals.


At a news conference at the L.A. Gay & Lesbian Center, L.A. Mayor Antonio Villaraigosa also expressed his delight with the ruling and promised to do whatever it takes to defeat the initiative:

This is all about people, and love, and the right of people to love who they want, the right of all of us to enjoy what's so fundamental to life, and that's the pursuit of happiness. And what it says is that our government doesn't have the right to interfere with that fundamental right...

"Once again, the forces of hate and divisiveness will come at us again as they did in 2000, and I was one of the co-chairs of the effort against [Prop 22]. I stand here, ready to chair, along with others, the effort to say that, here in California, the Golden State, that this decision is a decision that fundamentally changes forever the rights of every one of us to happiness and marriage as a fundamental right. I stand with you. I will campaign with you. I will make sure that we do everything in our power to keep this decision the law of the land, and in that vein, I intend to marry as many people... [cut off by applause and laughter]

Everyone assumed he meant "officiate at the weddings of as many LGBT people..."

The reaction to the ruling from LGBT advocates has been pure elation.

"We have waited more than 50 years for the opportunity to marry," said Phyllis Lyon, on behalf of herself and Del Martin, who are plaintiffs in the case. Lyon, 83, and Martin, 87, have been together 56 years. "We are thrilled that this day has finally come.

"As you can imagine, this is a moment of pure happiness and joy," said Shannon Minter, Legal Director for the National Center for Lesbian Rights - who argued the case before the court. 



"It is an absolutely wonderful and historic day," San Francisco City Attorney Dennis Herrera, whose office was also a plaintiff in the case, told reporters on a teleconference call.

"We're tremendously gratified that the Court today has fulfilled its traditional duty," said Jennifer Pizer, Senior Counsel for Lambda Legal. "Like the 1948 decision recognizing the right of interracial couples to marry, this ruling keeps a promise that every Californian should hold dear -- the California Constitution embraces everyone equally. Each of us depends on the Supreme Court to enforce our basic rights to be free and equal under law -- no more and no less than our neighbors and friends. Enforcement was essential for mixed-race families in the 1940s and for women in the 1970s, and it's essential for gay men and lesbians now. California's Constitution safeguards all of us."

From a legal and civil rights perspective, the ruling was elegant. Here's a sample (courtesy Lambda Legal):

In light of the fundamental nature of the substantive rights embodied in the right to marry -- and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society -- the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation....

Furthermore, in contrast to earlier times, 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. We therefore conclude that 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.

This case started on Valentine's Day, 2004. As they had been doing for years as part of a national Freedom to Marry Coalition, same sex couples went before local city clerks asking for marriage licenses. In Beverly Hills, Robin Tyler and Diane Olson, the Rev Troy Perry and Phillip De Bliek were refused and four days later their attorney, Gloria Allred filed a lawsuit challenging the state law.

But in San Francisco, Mayor Gavin Newsom gave the city clerk the go-ahead. Apparently Newsom was in attendance during President George W. Bush's State of the Union speech in which Bush advocated a federal constitutional amendment banning marriage equality for same sex couples.

After consulting attorneys and local LGBT leaders, Newsom decided to defy state law that defines marriage as between a man and a woman and grant the issuance of gender-neutral marriage licenses. The first couple to be legally married that day were Del Martin and Phyllis Lyon.

When word got out, thousands of lesbian and gay couples flocked to San Francisco with flowers in their hair and wedding bouquets in their hands, including celebrity Rosie O'Donnell and her partner.

One month later, a judge enjoined the city from issuing any more licensees. By then, nearly 4,000 same sex couples had been legally married.

Six lawsuits -- one by the city of San Francisco defending Newsom's action and three others filed by lesbian and gay couples and LGBT organizations, and two antigay groups opposing marriage equality -- were consolidated into one lawsuit.

In 2005, San Francisco Superior Court Judge Richard Kramer ruled that banning same-sex marriage violated "the basic human right to marry a person of one's choice" and that state marriage laws discriminated on the basis of gender. But in 2006 an appeals court said the state could keep the history and tradition of the definition of marriage while also protecting state domestic partnerships laws.

When the California Supreme Court agreed to hear the case last March, known as In re Marriage Cases, S147999, 90 briefs poured in -- 44 of which were amicus briefs, with 30 of those being filed in support of marriage equality -- all of which were posted on the court's website.

But the Supreme Court's decision is not the final one. Last month, Protect Marriage, a religious right coalition funded by such groups as Focus on the Family, spent around $2 million to gather more than 1.1 million signatures - significantly more than the 694, 354 valid signatures required to place a proposed constitutional amendment on the November ballot that would ban same sex marriages.

Other proposed constitutional amendments that would broaden the ban to include any legal recognition of same sex couples, failed to get enough support. A coalition of LGBT groups called Equality for All -- led by the statewide lobbying group Equality California -- unsuccessfully mounted a "Decline to Sign" campaign. However, the coalition's effort to stop the ballot initative continues.

There is great concern that -- despite very public statements about leaving the state's current domestic partnership laws in place -- if the constitutional amendment is passed by voters and overturns the court ruling or an as-yet-unplanned attempt to gut a piece of current legislation to pass a marriage equality bill -- the antigay forces will go after all LGBT legal rights.

Such was the case recently in Michigan when on May 7 the Michigan Supreme Court ruled that their 2004 voter-passed antigay marriage initiative also prohibits local governments and state universities from offering health insurance to the partners of gay workers, according to the
Detroit News
.

During the May 15 conference call with reporters, Geoff Kors, executive director of Equality California, and several of the attornies on the call said they did not know exactly what would happen if voters passed the constitutional ban.

But, Kors said:

I truly believe that Californians are ready to move past the type of politics that seeks to divide us by our differences. Most Californians work hard to treat others fairly, and they believe their neighbors should have the same opportunity to realize their hopes and dreams.

Nonetheless, LGBT groups have to now raise between $15-20 million -- during this very important election season and an economically-strapped economy -- to counter the $15-20 million the Protect Marriage forces intend to shell out.

But for now -- LGBT people throughout the state are jumping with the joy of equality -- including our allies. Here's a late statement from actor/director Rob Reiner:

Our nation was founded on the principle that all people are created equal. Today's decision is a huge step toward fulfilling that promise. Celebration is certainly called for, but the fight for equality is far from over.

Court decisions may guarantee equality under the law, but the real struggle is for the tolerance of our fellow Americans. This decision by a majority-Republican court signals that it's time to put this kind of discrimination and bigotry behind us.

Unfortunately, not everyone will hear the court's message. Already, there is a campaign being organized to overturn this decision at the ballot box. Californians must put an end to this sort of cynical and divisive politics once and for all.

California has led our nation so many times before. I hope that once again we set an example that the nation will follow.

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