The California Supreme Court Overturns The Gay Marriage Initiative

Buckle your seatbealts, everyone. Talk radio and the blogosphere are about to go into overdrive on this one. The summary:

This just in: By a 4-3 vote, the California Supreme Court has overturned the voter-approved gay marriage ban. Here’s the opinion, authored by Chief Justice Ron George and signed by Justices Joyce Kennard, Kathryn Werdegar and Carlos Moreno. Justice Marvin Baxter authored a separate ruling, concurring in part and dissenting in part (Justice Ming Chin joined Justice Baxter’s ruling). Justice Carol Corrigan also concurred in part and dissented in part.

Click here for an early AP report, here for a story from the SF Chronicle and here for an earlier LB post on the case.

The Court has ruled that the state of California’s interest in upholding the ban — that is, as the court explains, “the interest in retaining the traditional and well-established definition of marriage” — does not meet constitutional muster. It “cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.”

I have printed out the opinion (available here) and there is a lot to chew on - the majority opinion is 121 pages long; Justice Kennard's concurrence is 6 pages; Justice Baxter's concurrence/dissent is 26 pages; and Justice Corrigan's dissent goes on for 8 pages.

For me, Justice Baxter identifies the crux of the debate:

The majority opinion reflects considerable research, thought, and effort on a
significant and sensitive case, and I actually agree with several of the
majority’s conclusions. However, I cannot join the majority’s holding that the
California Constitution gives same-sex couples a right to marry. In reaching
this decision, I believe, the majority violates the separation of powers, and
thereby commits profound error.

Has the Court violated the separation of powers? Is this a decision that an unelected court should make? Justice Corrigan concludes that it should not:

In my view, Californians should allow our gay and lesbian neighbors to call
their unions marriages. But I, and this court, must acknowledge that a majority
of Californians hold a different view, and have explicitly said so by their
vote. This court can overrule a vote of the people only if the Constitution
compels us to do so. Here, the Constitution does not. Therefore, I must
dissent.

It is important to be clear. Under California law, domestic partners
have “virtually all of the same substantive legal benefits and privileges”
available to traditional spouses. (Maj. opn., ante, at p. 45.) I believe the
Constitution requires this as a matter of equal protection. However, the single
question in this case is whether domestic partners have a constitutional right
to the name of “marriage.”

Proposition 22 was enacted only eight years ago. By a substantial
majority the people voted to recognize, as “marriage,” only those unions between
a man and a woman. (Fam. Code, § 308.5.) The majority concludes that the voters’
decision to retain the traditional definition of marriage is unconstitutional. I
disagree.

This controversy is about a symbolic goal: Will we call it "marriage" when two people of the same sex unite in a long-term, committed relationship? It is not about rights and legal status. It's about recognition.

Expect lots of screaming and yelling on both sides, especially this fall, as a State Constitutional amendment goes on the ballot that would make marriage between one man and one woman the only kind recognized in California. The issue may even affect the presidential race, as Barack Obama will surely support the Court's decision today, while McCain will favor civil unions and other arrangements that confer rights, but stop short of calling a gay union a marriage.