West Law Report

Same-sex marriage as civil liberty

Posted in Same-sex marriage by mrkooenglish on May 17, 2008

(Photo: Jim Wilson/The New York Times)

Stuart Gaffney, left, and John Lewis reacted to the California Supreme Court decision in San Francisco.

NY Times Editorial called the ruling of California Supreme Court upholding the right of same-sex couples to marry a “victory for equality and justice”.

The Editorial quote the opinion, comparing the ruling with the one about interracial marriage:

In striking down the ban for violating state constitutional provisions protecting equality and fundamental rights, the court’s 121-page opinion fittingly drew on a 1948 decision in which California’s high court removed the bar to interracial marriage 19 years before the United States Supreme Court followed suit.

The new opinion found that “the right of an individual to establish a legally recognized family with a person of one’s choice” is fundamental. The court said California’s strong domestic partnership statute was not enough to solve the inequality problem.

“An individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold rights,” wrote Chief Justice Ronald George, first appointed to the bench by Gov. Ronald Reagan.

He noted that “tradition alone” did not justify the denial of a constitutional right to same-sex couples, any more than it did to interracial couples.

Another analysis of the paper mentioned the past ruling in the court:

The Supreme Court here was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The United States Supreme Court did not follow suit until 1967.

Ms. Stewart asked whether giving interracial couples the same rights under a different name — “say we called it transracial unions instead of marriage,” she said — would have satisfied the state Constitution in 1948.

Several of the justices seemed receptive to the analogy. Chief Justice Ronald M. George, seen by many here as the swing vote on a closely divided court, paused three times during the argument to quote from the Perez decision.

“The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” Chief Justice George said at one point, quoting a passage from the Perez decision by Justice Roger J. Traynor, who would go on to become chief justice of the court.

And thus, it’s said “same-sex marriage and racial justice find common ground” It can be read in the opinion:

Not long into the oral argument before the California Supreme Court in March over whether gay and lesbian couples have a constitutional right to marry, Chief Justice Ronald M. George showed his hand.

Three times he quoted from the court’s 1948 decision in Perez v. Sharp that struck down a state ban on interracial marriage, a high point in the history of a prestigious and influential court.

“The essence of the right to marry is freedom to join in marriage with the person of one’s choice,” Chief Justice George said, quoting Perez.

It is compared with other landmarket rulings:

As divisive as Thursday’s decision was, the Perez decision was a judicial earthquake. Six years would pass before the United States Supreme Court, in the 1954 Brown v. Board of Education decision, ruled that racially segregated public schools violated the Constitution. Thirteen more years would pass before that court followed Perez in striking down bans on interracial marriage in Loving v. Virginia in 1967.

Why it is important?

Perez helped answer a central question before the court. Why was California’s domestic partnership law, which provides virtually all of the legal rights and obligations that go with heterosexual marriage, not enough?

Therese M. Stewart, a lawyer for the City and County of San Francisco, had an answer at the argument. She asked the court whether it would have satisfied California’s Constitution in 1948 to give interracial couples the same rights under a different name. “Say we called it ‘transracial unions’ instead of marriage,” she said, in a mocking tone.

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