Raising the Roof at City Hall

By Sue Rochman

Originally published on Advocate.com May 15 2008 12:00 AM ET

The California supreme court ruled Thursday that lesbian and gay couples are entitled to the right to marry in California and that not allowing them to do so violates the state’s constitution.

In a 4-3 decision, drafted by Chief Justice Ronald George, the court stated, “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.”

The court added: “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.”

The widely awaited ruling (available in full at www.courtinfo.ca.gov/courts/supreme/) was greeted with cheers in San Francisco, where plaintiffs, legal experts, and politicians gathered to discuss the court’s decision.

“We won!” exclaimed NCLR Executive Director Kate Kendall, with tears in her eyes, before a throng of supporters gathered in the rotunda of San Francisco’s City Hall. “And there is not one lesbian, gay, bisexual or transgender person in this country who is not better off because we won.”

Mayor Gavin Newsom was greeted with thunderous applause when he entered City Hall to join a celebratory press conference. “This day is about real people and their lives,” he said. “This is about Phyllis Lyon and Del Martin. It’s about civil rights. It’s about time! And as California goes, so goes the rest of the country!”

In an exclusive interview with The Advocate, Newsom joked that he told Lyon and Martin “not to get into a fight. We need you. My ideal is to have them be the first couple in the city to be married.”

It was four years ago that Mayor Newsom re-lit the fuse under the gay marriage debate when he announced that the city of San Francisco would permit same-sex couples to marry. Lyon and Martin were his first customers. More than 4,000 couples eventually would be married in San Francisco between February 12 and March 11, when the supreme court ordered the marriages to come to a halt.

Five months later, the court nullified the marriages and sent the question of whether same-sex marriage was unconstitutional to the lower courts. In March 2005, a San Francisco superior court judge ruled the law unconstitutional. In October 2006, the state appeals court, in a 2-1 ruling, overturned that ruling when it decided that California state did have the right to limit marriages to heterosexual couples. That decision was appealed by the city of San Francisco and gay rights groups, a move that led to today’s dramatic decision.

The ruling came 72 days after the court heard oral arguments on March 4 about the meaning and significance of marriage and whether barring same-sex couples from marrying violated their right to fair and equal treatment.

The marriages that took place in San Francisco in 2004 will not be recognized by the court’s current decision. “Those marriages remain a historic civil rights moment,” said Therese Stewart, chief deputy city attorney of San Francisco, who argued the case before the court on behalf of the City and County of San Francisco. “And if those couples do decide to marry again, their marriage will take effect from the day their new marriage license is issued.”

When gay men and lesbians can actually begin to start marrying has not yet been determined. As NCLR Legal Director Shannon Minter, who argued the case before the court, explained, “The Supreme Court has directed the lower court to take action on its decision. When the marriages can happen is a practical matter, as the court will need to create a mechanism for this to occur.” But, Minter added, he expects it to happen “very shortly.”

The court’s decision also means that same-sex couples who were married in Massachusetts, Canada, or any other countries that allow same-sex marriage would have their marriages recognized in California.

Gay rights advocates repeatedly underscored the bravery the court showed in its decision. “In an era when courts are under attack,” said Stewart, “our court has remained true to its history. This took a lot of courage, and the court is going to be criticized by some for this decision.”

As they celebrated their victory, gay rights leaders also acknowledged that the fight is not yet over. Conservative organizations in California have submitted signatures to put an initiative on the November ballot to change the state Constitution so that it explicitly bans same-sex marriage. Because it is a constitutional amendment, passage of this initiative would, theoretically, trump today’s court ruling. However, in a conference call with reporters, both Minter and Stewart said it was not yet clear what would happen if that initiative passes.

Gov. Arnold Schwarzenegger, who announced that “he respects the Court’s decision” and “will uphold its ruling,” also said that he “will not support an amendment to the constitution that would overturn the Supreme Court ruling.”

“It would be a profound setback if it was successful,” Newsom told The Advocate. “It would also be pretty damning that Californians would allow the state to write discrimination into the constitution after this court decision. I just think California is a better state than that.”

Besides, said Newsom, who was glued to his television this morning to hear the court’s decision, we’ve got momentum on our side. “With this decision comes a new reality and it will be advanced, we hope, in 60 days with tens of thousand of couples getting married in between now and November,” he said. “They will be people’s brothers and sisters and aunts and uncles and parents and kids. It’s going to be the guy who runs the corner store, the young lady who owns the restaurant down the block, the person serving coffee or dropping off the mail. There will be police officers and fire fighters and friends and neighbors. And then after they experience that joy all around them, people will be asked in November to take all of that away, to say to all of those families that you just don't matter and what you have can be taken away.”

He added that he’s confident California voters won’t do that. “With this ruling, it’s now different,” he said. “Before, they weren't taking anything away. They were just continuing to deny. But now they are going to be taking away a right, and that's different than what’s in the voter pamphlet right now.