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EDITORIAL: Ruling is not the last word
MediaNews editorial
May 16, 2008
IN A LANDMARK decision, the California Supreme Court ruled 4-3 to overturn the state's ban on same-sex marriages, which was established by a 2000 statutory initiative.
But the fight over gay marriage is far from over. Another ballot initiative is headed for the November ballot that seeks to limit marriages to a relationship between a man and a woman.
Unlike the 2000 initiative, which received 61 percent of the vote, the November measure is a constitutional amendment that could overturn Thursday's court ruling .
But for now, the state's highest court, with six of the seven justices appointed by Republican governors, has taken a huge and controversial step toward expanding marriage rights.
Writing for the majority, Chief Justice Ron George argued that domestic partnerships are an inadequate substitute for marriage. He said that even though domestic partnerships give most of the same rights to same-sex couples as marriage does to opposite-sex couples, there was no "compelling reason" to distinguish between the two.
He wrote that the statutory ban on same-sex marriage "must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race and religion — a constitutionally suspect basis upon which to impose different treatment."
George continued, writing that the "differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple."
He added that such differential treatment "raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause."
In his dissent, Justice Marvin Baxter concluded that "Nothing in our constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid."
Baxter argued that "California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow.
If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process."
Baxter has a valid point, but the democratic process he prefers is hardly foreclosed.
Despite the court's ruling, California voters will have the opportunity to use the democratic initiative process in the fall. That is when we will see if public opinion has shifted enough to make a sea change along with the court in granting the same marriage rights to same-sex couples as it does to opposite-sex couples.
Copyright 2008
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