May 15, 2008

California ruling on gay marriage and ‘full faith and credit’ detailed

There’s plenty of information to be mined from the California Supreme Court’s 172-page PDF of its ruling legalizing gay marriage in the state — and explicitly updating state law vis-à-vis the U.S. Constitution’s “full faith and credit” clause and how it relates to gay marriage.

In the preamble to the ruling, the majority sets up the ground for noting that domestic partnerships are, in essence, separate but not equal.

The court then notes the state does not have a “compelling interest” in maintaining the status quo nor is it “necessary” to serve such an interest.

Specifically, the court notes the issue of “dignity” of same-sex marriage vs. domestic partnerships, the potential perpetuation of the idea of “second-class citizenship,”

Here’s the kicker graf on the court’s ruling:
Although the California statutes governing marriage and family relations have undergone very significant changes in a host of areas since the late 19th century, the statutory designation of marriage as a relationship between a man and a woman has remained unchanged.

The court specifically cited things such as changes in a married woman’s legal property rights as evidence of major evolution.

The court also found that California law, as written, appeared not to extend “full faith and credit” to gay marriage elsewhere.
Section 308.5 provides in full: “Only marriage between a man and a woman is valid or recognized in California.” This statutory language does not purport to limit the statute’s application to out-of-state marriages or to draw any distinction between in-state and out-of-state marriages.

This stems back to Prop. 22 in California in 2000, which read, in full:
Only marriage between a man and a woman is valid or recognized in California.

Nobody had yet sued the state over this, but since Massachusetts had already legalized gay marriage, the court apparently felt this needed to be addressed.

Beyond the main ruling, this will earn the California Supreme Court more “judicial activism” brickbats, I’m sure.

And, given gay-marriage haters’ bid to get a proposed constitutional amendment on the November ballot, this thing isn’t over. (The vote to approve Prop 22 was 4,618,673 votes versus 2,909,370. People who think California is the stereotypical “land of fruits and nuts,” or whatever, have no clue about its electoral complexity.)

So, fasten your political seat belts.

The history of the case is that a state superior court ruled California law unconstitutional, but an appellate court reversed that on a 2-1 vote, basically accusing the lower court of inventing a civil right where none existed before.

The state supreme court also said that anti-gay marriage advocacy groups that intervened in the original issue, San Francisco Mayor Gavin Newsom performing gay marriages, had no legal standing once Newsom’s actions had been declared legally null and void.

That all said, given that much of the court’s language explicitly parallels the SCOTUS stance in 1954 on Brown v. Board of Education, I’m wondering how this will play out in California’s black communities.

Many, but by no means all, black civil rights leaders, of both older and younger generations, have said their struggles have been unique (which they have), but unique in a way that gay rights activists have no right to draw comparisons or make linkage.

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