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California Supreme Court Rules Same Sex Marriage Constitutional

Today the California Supreme Court’s decision dropped on the constitutionality of a same sex marriage ban. Specifically, the court addressed this question:

The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

The Court found that the “right to marry is a basic, constitutionally protected civil right -‘ "a
fundamental right of free men [and women]” without regard to sexual orientation and that the Legislature cannot limit it.

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 majority goes on to state (in this 121 page majority opinion):

In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one’s choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution -‘ in declaring that "[a]ll people . . . have [the] inalienable right[] [of] privacy" (art. I,  § 1) and that no person may be deprived of "liberty" without due process of law (art. I,  § 7) -‘ do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights.

Let the gay and lesbian marriage of convenience/marriage in trouble stories begin!

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She self publishes NA and contemporaries (and publishes with Berkley and Montlake) and spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com


  1. flip
    May 15, 2008 @ 13:28:46

    Hip, hip hooray for the California Supreme Court. The right to marry is one of the most fundamental human rights; it is even more important than the right to vote.

  2. Janine
    May 15, 2008 @ 13:31:21


  3. Sarai
    May 15, 2008 @ 14:10:57

    As a side note did you know that couples who get married in different states ex: same sex couples getting married in California that live in like Kansas are having a real hard time of getting divorced. That was a side note that I found interesting. They make it so hard to get married and then even harder to divorce.

  4. Emmy
    May 15, 2008 @ 14:18:52

    Now all they have to do is let military same sex marriages happen. Gettin tired of seeing all these not-very-deep-in-the-closet gay guys marrying women for a very flimsy cover at work…and the extra pay and other military benefits that come along with being married. Most of the ‘happy couples’ don’t even live together, for crying out loud.

  5. DS
    May 15, 2008 @ 14:31:19

    I don’t know whether to be delighted or appalled. My stupid state passed a state constitutional amendment to prevent same sex marriage. Then the Christian right wing started going after companies that offered benefits to domestic partners. You see that was treating people like they were married so they couldn’t do that. (The appalled part simply refers to the fact that civil law has not been preparing for gay marriage even after it started being raised convincingly and repeatedly, e.g., the divorce problem mentioned above.)

  6. Rachel
    May 15, 2008 @ 15:08:06

    Hooray! Now hopefully more states will follow suit. Good job, California State Supreme Court!!

  7. XandraG
    May 15, 2008 @ 15:22:08

    Hey DS, your stupid state and mine should do lunch. Mine ended up passing an amendment so spastically hate-filled that now anyone cohabiting in an unmarried state is free to beat their non-spouse without fear of having the violence be treated like a domestic violence case.

    I hold out hope that my state will come to its senses in the near future and get out of the stone age.

  8. loonigrrl
    May 15, 2008 @ 15:33:22

    Awesome! Today, I’m proud to be a Californian. However, I’m a little nervous about the Christian conservatives’ upcoming attempts to amend the state constitution and overturn the Supreme Court’s ruling.

    And I cannot believe how much hate is being spewed over this issue. I jumped onto the discussion boards at msnbc and was just appalled by some of the comments made there by the so called “Christians.”

  9. vanessa jaye
    May 15, 2008 @ 15:35:29

    Awesome. Canada has sanctioned gay marriages for several years now; it’s good see that the tide is slowly, but surely, changing elsewhere.

  10. Marianne LaCroix
    May 15, 2008 @ 16:09:45

    Good. This is good news.

    I feel a wedding coming on. (My BIL and his partner live in CA.)

    Here in GA, the issue came up a few years ago on election day and was voted down.

  11. whey
    May 15, 2008 @ 16:42:55

    It’s hard to get too excited about this. It’s like a big, fat, “DUH.” We have a major mess to clean up in this nation. (And any daytraders out there, don’t forget tomorrow is Option Expiry Friday — get out of those options TODAY, don’t wait for the bear/bull trap to snap on you tomorrow.)

  12. (Jān)
    May 15, 2008 @ 16:59:04

    This is good. But it just means that the next stop is the Supreme Court, correct? I have a feeling a ruling from them might not be so good. :(

  13. K. Z. Snow
    May 15, 2008 @ 17:20:34

    Yippee! Sometimes common sense and fairness DO prevail!

  14. whey
    May 15, 2008 @ 20:21:15

    But it just means that the next stop is the Supreme Court, correct?

    From my intensive eight minute research into this, no. SCOTUS can’t interpret a state’s constitution. The California constitution would have to be amended.

    Two minutes from now, I will probably discover the exact opposite. I still don’t know whether butter or margarine is better for us.

  15. (Jān)
    May 15, 2008 @ 20:31:28

    Butter! XD Thanks Whey!

    OK then, I’m just trying to wrap my head around what this means. So unless California voters pass one of those stupid amendments that bans gay marriage, gay marriage is legal there? What happens then when a legally married couple in California goes to a state where they’ve banned gay marriage then? Does their marriage disappear? It couldn’t, right? So other states will be forced to acknowledge it? How confusing, but I hope it’s so. :)

  16. Jane
    May 15, 2008 @ 20:53:31

    No, that’s right. The Calif. Supreme Court has the last say on how it interprets the Calif Constitution.

    Jan – The full faith and credit clause of the US Constitution is the one under which judgments and decrees made in one state are honored in another. I.e., if you go to a state like Nevada that doesn’t have a waiting period for divorce or marriage, your marriage/divorce should be upheld in the state in which you reside.

  17. (Jān)
    May 15, 2008 @ 21:03:43

    Thanks Jane. Wow, so this is really a huge victory then. It basically invalidates in practice the gay marriage bans in other states as long as a couple can go to California?

    So basically the anti-gay marriage people will be trying to get constitutional amendments passed in California and at the national level then, because that’s their only chance to get their way? I hope they fail big-time.

  18. Jane
    May 15, 2008 @ 21:07:36

    I think that a consistent finding would uphold the marriage, BUT some states courts are free to torture the interpretation of the Full Faith and Credit Clause to not recognize it. An exception to the FF&C Clause is “against public policy” so some states’ courts could find that it would be against “public policy” to uphold the marriage. My guess is if there is a same sex marriage ban in one state that has been upheld and/or unchallenged, then the “public policy” exception will allow them to not recognize the marriage.

  19. Nora Roberts
    May 16, 2008 @ 04:49:04

    This is excellent.

  20. Tasha
    May 16, 2008 @ 13:36:46

    The significance of this ruling isn’t so much that it makes same-sex marriage valid in other jurisdictions (it doesn’t), but that it puts sexual orientation in in the same class as gender, race, and religious beliefs in terms of rights and protections under the California constitution–specifically so.

    Gays can now challenge ANY state policy that discriminates on the basis of sexual orientation. That’s a major step forward.

    Further, this is not a radical, activist court. This is a mostly Republican appointed court, and a very well-respected one–meaning this decision is going to carry a lot of weight for courts around the country.

  21. Kat
    May 19, 2008 @ 01:01:00

    I was thrilled to hear this on the news this week! I am hoping that when the amendment to change the constitution come to a vote – and it will- that more people step forward and stand for equality. Remember the courts decision was to overturn a statewide proposition that passed by better than 60% defining marriage as between a man and a woman. We proved years ago that separate is not equal. IMO, as far as the state (or any government) is concerned marriage should be a civil contract between two people. Churches can define it however they choose, but they shouldn’t be able to define it for everyone.

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