Gay Marriage Ruling Launches a Larger Fight

After months of waiting, Jon Davidson, legal director for Lambda Legal, finally heard what he was hoping to hear from the California Supreme Court. On May 15 the court came out with its highly anticipated ruling on legally recognized marriage for same-sex couples and delivered what Davidson called "totally a home run."

The 4-3 decision, which consolidated six appeals under the case referred to as In re Marriage Cases, found that same-sex couples are equally entitled to the right to get married and are covered under the State Constitution's equal protection clause. Stemming from the 2004 Valentine's Day marriage ceremonies performed by the City of San Francisco, the decision agrees with a state trial court ruling and overturns a California Court of Appeals 2-1 decision.

This means California will join Massachusetts in recognizing same-sex marriages, a step marriage-equality activists say is a huge leap for LGBT rights across the nation.

Calling the 121-page decision "an incredibly powerful case rebutting all the arguments used against us," Davidson said the California Supreme Court is well respected but hardly liberal. Three of the four members who joined the majority decision were appointed by Republican governors, he noted.

Bradley Sears, director of the Williams Institute at the UCLA School of Law, said the decision is unique because the court went beyond the concept that government can't interfere with individual rights by ruling that "government has to do something positive to affirm it." Sears also explained that the decision allows same-sex couples from other states to come and get legally married in the Golden State, something they are prevented from doing in Massachusetts. "You can expect a lot of travel to California in the next few months," Sears predicted.

Long before the ruling, California was on the forefront in terms of legal recognition for same-sex couples. In 1999 the state legislature passed and then-Governor Gray Davis signed a law establishing a modest domestic partnership program, which was subsequently expanded to include virtually all of the rights afforded to legally married couples, including the ability to file state tax returns jointly. In 2005 and 2007 the legislature passed bills to recognize marriages between same-sex couples, but Governor Arnold Schwarzenegger vetoed both bills.

While champagne corks are sure to be popping in West Hollywood and the Castro, LGBT rights activists are gearing up for what will arguably be the fight of their lives. In June California Secretary of State Debra Bowen will announce whether backers of a state constitutional amendment banning legal recognition of same-sex marriage have secured enough signatures to get their measure put on the November ballot. If the measure goes before voters, expect multimillion-dollar media and get-out-the-vote campaigns from both sides, making the Golden State the new ground zero for the marriage wars.

Democrats fearful of a repeat of 2004, when marriage amendments made it on more than a dozen state ballots in a ploy to gin up the conservative base for Bush's re-election, would do well consider how different California could be in 2008. Despite his vetoes of the gay-marriage bills, Schwarzenegger released a statement the morning of the court ruling, stating, "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."

In April Schwarzenegger spoke at the Log Cabin Republicans' national gathering in San Diego, where he called the proposed amendment a "total waste of time" and said that he "will always be there to fight against that." Even with a popular Republican governor's condemnation of the amendment drive, Sears predicts, "it's going to be a very close vote." "Historically those initiatives have done well in the state. There's been a growing amount of support for the domestic partnership legislation as it stands, less for marriage. The more people see their neighbors marrying, [the more] their opinions change. The question is how much money are both sides going to put into this campaign in the next few months."

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