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With a one-vote majority, California's Supreme Court overturned a law banning same-sex marriage yesterday (PDF of decision). The case is a consolidation of appeals to the same court's ruling in 2004 that San Francisco had illegally granted marriage licenses to same sex couples. In that decision they had expressly stated that they were not ruling on the constitutionality of the law, but only one whether or not the law had been broken. In this case they examine the constitutionality of the law and find that the law violates basic constitutional rights: the right to form a legally recognized family with a partner one loves, and the right to equal protection under the law.
The CA decision refers back to a much earlier decision - Perez v. Sharp in 1948 - in which the court found that laws banning interracial marriage were unconstitutional. This was 19 years before Loving v. Virginia, the U. S. Supreme Court case that did the same thing nationwide. (Mildred Loving, whose marriage to Richard Loving was at the center of that case, died on May 2.)
Kenji Yoshino, a Yale Law professor writing for Slate today, points out that one strength of yesterday's decision is that it is based not only on liberty (the right to form marriages based on love and choice) but also on equality (the right to be treated equally by the law regardless of sexual orientation), and points out that because of that, this decision goes beyond the right to marry and makes it clear that any California law that discriminates against people based on sexual orientation is equally in trouble. That's the good news.
The bad news is that today The New York Times reports that same sex marriage opponents had already submitted a petition for a ballot question amending the California constitution to define marriage as a relationship between one man and one woman. And Californians are the masters of ballot initiatives. I'm guardedly optimistic but not holding my breath.
In Massachusetts after the state's Supreme Court legalized same sex marriage in 2004 there were also threats of constitutional amendments, but this is different. In Massachusetts the proposed amendment had to be approved during two consecutive sessions of the state legislature, a lengthy process that allowed many same sex marriages to occur and much time to pass during which it was clear that nothing in the state fell apart as a result. In Massachusetts those amendments ultimately failed. In California, on the other hand, amending the constitution is apparently a simple matter of a ballot initiative on which people will vote a mere six months after the decision, when feelings about the issue will still be running very high.
It seems to me that constitutional amendment by ballot measure is rather too much direct democracy. Does anyone care to make predictions on this one?
Technorati Tags: California, same-sex marriage, sexuality
...because public space really matters!
Elizabeth
The court decision is really exciting! I wasn't in the Castro the evening it came down, but I hear it was a great party, a wonderful moment of community. It's the kind of thing that warms my hippie little heart and makes me feel a part of a great big family.
But as I said in my subject line, I'm nervous. I know that the Religious Right are really good at getting out their voters, and they will play with people's homophobia to get this ammendment passed. I'm worried that their tactics--which I think are lowbrow and hurtful but are nonetheless effective--might work to get California voters to put discrimination in our constitution. Which would obviously just be a shame. I love California, and I love living in San Francisco where people mostly have open minds. It would be so sad to see us pass something so...backwards.
I can't build real love out of paper cuts and plastic. -Jenny Owen Youngs
I'm sorry to have missed this comment when it was first posted. It's been kind of crazy around here.
I totally understand your nervousness. I think the fact that it only takes a simply majority on a ballot initiative to amend the constitution is grounds for great nervousness. On the other hand, I suppose it is also grounds for some amount of optimism. Technically, I suppose, it means that the constitution can be amended very frequently should people decide to organize for change. Maybe this is a good reminder that people living in states with such simple amendment procedures should start combing through their constitutions for things that need changing.
And in California specifically it means that those who want to see equality protected need to organize voters in large numbers. Let us know if we can be helfpful at Sex In The Public Square. Unfortunately none of the site's founders are able to vote in California, but we are prepared to help mobilize voters there, to be certain! And California is our second largest source of readers after New York. Let us know what you need. And we'll keep following the story.
...because public space really matters!
Elizabeth
Same sex marriages have now been legal in California for a full week. How is it going out there? Is the ballot-initiative work slowing down or speeding up? What kind of grass roots or online organizing is needed to make sure that it fails and marriage stays legal?
...because public space really matters!
Elizabeth
