Thursday, May 15, 2008


Four members of the California Supreme Court have held that same-sex couples have a constitutional right to marry. The Court also ruled that anytime the state differentiates on the basis of sexual orientation the state must prove that it has a compelling reason for doing so and that the differentiation based on sexual orientation is necessary to carry out that compelling state interest. In legal lingo, this is "strict scrutiny," and for all intents and purposes it means an end to all state-sponsored discrimination against gay men and lesbians in California. It's a HUGE gay civil rights win.

The opinion roundly dismisses the more ludicrous arguments that other states have accepted -- like the importance of retaining marriage for different-sex couples because only they get pregnant accidentally! But the opinion contains a bit too much glorification of marriage for my taste (not as bad as the Massachusetts decision in 2003). The court says the state could not eliminate marriage, but it MIGHT be able to change the name of marriage to something else, as long as it did so for all couples. (Let's do it!) The court says that "the right to marry does obligate the state to take affirmative action to grant official, public recognition to the couple's relationship as a family," but of course it does not preclude recognition of unmarried relationships. California already allows unmarried partners to receive workers compensation death benefits when one partner dies on the job (Harvey Milk's partner got these benefits in 1978!) and already allows unmarried partners to raise children jointly and adopt children together. It's critically important to continue bulding protections for the emotional peace of mind and economic security of all families.

Californians will almost certainly vote in November on whether to amend their constitution to overturn this ruling. Expect marriage licenses to issue sometime in late June...and the California tourism industry to prosper as same-sex couples go there to marry this summer! Meanwhile, congratulations to legal director Shannon Minter and the entire staff of the National Center for Lesbian Rights.


lawstudent123 said...

Will domestic partnerships in California disappear? Has there been any commentary on this yet? What do you think?

Nancy Polikoff said...

Ah..great question. I have not heard a word about this. The California DP law allows different-sex couples to register as domestic partners if one is 62 or older. The history behind this is unclear, but marriage does affect some matters distinct to older people -- such as Medicare eligibility -- that might make a status not recognized as marriage by the federal government desirable. Of course, no same-sex marriage is recognized by the federal government! If I get word about this, I'll post it.