Good News from the Golden State

Civil marriage for same-gender couples has been legalized in California - at least for now - with the historic decision by the California Supreme Court to overturn a voter-approved ban on gay marriage.

The court’s decision paves the way for California to become the second state in the U.S. where gay and lesbian residents can marry. The justices released the 4-3 decision this morning, saying that domestic partnerships are not a good enough substitute for marriage in an opinion written by Chief Justice Ron George.

In response to the court’s decision that same-sex couples have equal protection under the law as it pertains to marriage, OutFront Minnesota Staff Attorney Phil Duran declared that a “victory” had been secured for “everyone who cherishes fairness and opportunity.”

“Two people in a committed, trusting and loving relationship deserve the dignity and support that come with marriage,” Duran said in a media release.

Following is an Associated Press article on this latest development in the same-sex marriage debate in the U.S., followed by some thoughts of my own (and others) on the issue of gay marriage and so-called activist judges.

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California’s Top Court Legalizes Gay Marriage
By Lisa Leff
Associated Press
May 15, 2008

California’s Supreme Court declared gay couples in the nation’s biggest state can marry — a monumental but perhaps short-lived victory for the gay rights movement Thursday that was greeted with tears, hugs, kisses and at least one instant proposal of matrimony.

Same-sex couples could tie the knot in as little as a month. But the window could close soon after — religious and social conservatives are pressing to put a constitutional amendment on the ballot in November that would undo the Supreme Court ruling and ban gay marriage.

“Essentially, this boils down to love. We love each other. We now have equal rights under the law,” declared a jubilant Robin Tyler, a plaintiff in the case along with her partner. She added: “We’re going to get married. No Tupperware, please.”

Above: Lesbian couple Robin Tyler, left, and Diane Olson,

pose for a photo at the law office of their attorney Gloria Allred
on Thursday, May 15, 2008, during a news conference.
(AP Photo/Nick Ut)

A crowd of people raised their fists in triumph inside City Hall, and people wrapped themselves in the rainbow-colored gay-pride flag outside the courthouse. In the Castro, the historic center of the gay community in San Francisco, Tim Oviatt wept as he watched the news on TV.

“I've been waiting for this all my life. This is a life-affirming moment,” he said.

By the afternoon, gay and lesbian couples had already started lining up at San Francisco City Hall to make appointments to get marriage licenses.

In its 4-3 ruling, the Republican-dominated high court struck down state laws against same-sex marriage and said domestic partnerships that provide many of the rights and benefits of matrimony are not enough.

“In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation,” Chief Justice Ronald George wrote for the majority in ringing language that delighted gay rights activists.

Massachusetts is the only other state to legalize gay marriage, something it did in 2004. The California ruling is considered monumental by virtue of the state’s size — 38 million out of a U.S. population of 302 million — and its historic role in the vanguard of the many social and cultural changes that have swept the country since World War II.

California has an estimated 92,000 same-sex couples.

“It's about human dignity. It’s about human rights. It’s about time in California,” San Francisco Mayor Gavin Newsom,* pumping his fist in the air, told a roaring crowd at City Hall. “As California goes, so goes the rest of the nation. It’s inevitable. This door’s wide open now. It’s going to happen, whether you like it or not.”

Above: San Francisco Mayor Gavin Newsom reacts to the news

that the California Supreme Court has overturned a ban
on gay marriages, in his office in San Francisco,
Thursday, May 15, 2008. (AP Photo/Eric Risberg)

Unlike Massachusetts, California has no residency requirement for obtaining a marriage license, meaning gays from around the country are likely to flock to the state to be wed, said Jennifer Pizer, a gay-rights attorney who worked on the case. The ultimate reach of the ruling could be limited, however, since most states do not recognize gay marriages performed elsewhere. Nor does the federal government.

The conservative Alliance Defense Fund said it would ask the justices for a stay of the decision until after the fall election in hopes of adding California to the list of 26 states that have approved constitutional amendments banning same-sex marriage.

“We’re obviously very disappointed in the decision. The remedy is a constitutional amendment. The constitution defines marriage as a union between one man and one woman,” said Glen Lavy, senior counsel for the organization.

Opponents of gay marriage could also ask the high court to reconsider. If the court rejects such a request, same-sex couples could start getting married in 30 days, the time it typically takes for the justices’ opinions to become final.

Above: Same-sex couple Shelly Bailes and Ellen Pontac kiss
in response to a California Supreme Court decision to overturn
the ban on same-sex marriage at the California Supreme Court
in San Francisco, California. (AFP/Getty Images/Justin Sullivan)

The justices said they would direct state officials “to take all actions necessary to effectuate our ruling,” including requiring county marriage clerks to carry out their duties “in a manner consistent with the decision of this court.”

The case was set in motion in 2004 when the mayor of San Francisco — the unofficial capital of gay America — threw City Hall open to gay couples to get married in a calculated challenge to California law. Four thousand gay couples wed before the Supreme Court put a halt to the practice after a month. Two dozen gay couples then sued, along with the city and gay rights organizations.

Thursday’s ruling could alter the dynamics of the presidential race and state and congressional contests in California and beyond by causing a backlash among conservatives and drawing them to the polls in large numbers.

A spokesman for Republican John McCain, who opposes gay marriage, said the Arizona senator “doesn't believe judges should be making these decisions.” The campaigns of Barack Obama and Hillary Rodham Clinton said they believe that the issue of marriage should be left to the states.

Ten states now offer some form of legal recognition to same-sex couples — in most cases, domestic partnerships or civil unions. In the past few years, the courts in New York, New Jersey and Washington state have refused to allow gay marriage.

Outside the San Francisco courthouse, gay marriage supporters cried and cheered as news spread of the decision. Jeanie Rizzo, one of the plaintiffs, called Pali Cooper, her partner of 19 years, via cell phone and asked, “Pali, will you marry me?”

Shannon Minter of the National Center for Lesbian Rights said same-sex marriage advocates could not have hoped for a more favorable ruling by the Republican-dominated court. “It’s a total victory,” Minter said.

Above: From left, gay couple, Phillip DeBlieck and Rev. Troy Perry,

their attorney Gloria Allred, and lesbian couple Robin Tyler and
Diane Olson, hold a sign during a news conference at Allred's office
on Thursday, May 15, 2008. (AP Photo/Nick Ut)

California already offers same-sex couples who register as domestic partners many of the legal rights and responsibilities afforded to married couples, including the right to divorce and to sue for child support.

Citing a 1948 California Supreme Court decision that overturned a ban on interracial marriages, the justices struck down the state’s 1977 one-man, one-woman marriage law, as well as a similar, voter-approved law that passed with 61 percent in 2000.

The chief justice was joined by Justices Joyce Kennard and Kathryn Werdegar, all three of whom were appointed by Republican governors, and Justice Carlos Moreno, the only member of the court appointed by a Democrat.

In a dissent, Justice Marvin Baxter agreed with many arguments of the majority but said that the court overstepped its authority and that changes to marriage laws should be decided by the voters. Justices Ming Chin and Carol Corrigan also dissented.

California’s secretary of state is expected to rule by the end of June whether the sponsors gathered enough signatures to put the gay-marriage amendment on the ballot.

Republican Gov. Arnold Schwarzenegger, who has twice vetoed legislation that would have granted marriage to same-sex couples, said in a statement that he respected the court’s decision and “will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”

Associated Press writers Terence Chea, Jason Dearen, Juliana Barbassa and Evelyn Nieves in San Francisco and Liz Sidoti in Washington contributed to this report.

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In the wake of the California Supreme Court decision you can be sure that we’ll be hearing a lot of hollering from gay marriage opponents about “activist judges.” According to such folks, liberal activist judges make law, as opposed to interpreting it; they ignore the plain meaning of texts to invent new rights; and they superimpose their moral views onto their legal reasoning, thus brazenly advancing the cause of the fringe liberal elites in the culture wars. Sound familiar?

I appreciate what Kung Fu Monkey has to say about so-called activist judges. He writes:

The phrase ‘activist judge’ will pop up in [the] gay marriage discussion. People will insist that this judge is circumventing the will of the people, the will represented by the legislature in passing certain laws, or backing certain legal definitions over others.

I’m sorry – I’m really sorry – but if you use the term ‘activist judge’, then frankly you know absolutely nothing about how the U.S. works. . . . I’m going to say this slowly. Judges. Are. Supposed. To. Overturn. Laws. Not all of them. But, yeah, some of them. Then there are appeals, or new laws are passed, and the process starts all over again. That’s how it works. That’s how it’s supposed to work.

You can disagree with a judge overturning a law you like, fine, that’s democracy. But implying the judge has no right to overturn a law because said law represents the will of the majority, and therefore that judge is an ‘activist’ judge, well, sadly, that reveals a depth of ignorance about the Constitution and the writings of the Founding Fathers which automatically disqualifies you from the discussion.

No, seriously. If you say you disagree with gay marriage, fine – I disagree with you, but you’re entitled to whatever opinion you have in your skull. But as soon as you use the phrase ‘activist judge’, you take yourself out of the game. Not according to me. I like you. No, you’re an idiot according to Thomas Jefferson, Thomas Paine, John Adams, Ben Franklin, et al. So, go read the Federalist Papers, and preferably leaf through Fareed Zakaria’s The Future of Freedom, and come back when you have a basic understanding of civics.

Also worth pondering is the perspective of Mariah Wojdacz who, in her online commentary, “Activist Judges: What’s In a Name?”, notes:

We all evidently believe that you’re either for the liberal activist judges or against them. Folks on the left say they protect minorities from majority tyranny, as the Massachusetts Supreme Judicial Court did last year in the gay marriage decision. Folks on the right say they act as unelected superlegislators. Folks on the left say they are interpreting a living Constitution. Folks on the right say they are unmoored from any fixed point, save, perhaps, the Harvard Law School.

Yet, says Lithwick, what about inventing “a new term . . . for judges or judicial nominees on the right, who claim to be merely ‘interpreting’ the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by ‘liberal activist judges.’”

Writes Lithwick:

Re-activist judges are able to present themselves as ‘strict constructionists’ or ‘originalists’ by arguing, as does Justice Clarence Thomas, that any case decided wrongly (i.e., not in accordance with the framers of the Constitution) should simply be erased, as though erasure is somehow a passive act. And while there is an urgent normative debate underlying this issue – over whether the Constitution should evolve or stay static – no one ought to be allowed to claim that the act of clubbing a live Constitution to death isn’t activism. So, judicial re-activism. It doesn't exactly trip off the tongue, I know. But let’s put it out there anyhow, and attempt to level the rhetorical playing field.

I’m all for that!

Then there’s this quote by judicial analyst and former superior court judge Andrew Napolitano that’s definitely worth thinking about:

There is no such thing as an activist judge. An activist judge is one whose ruling you disagree with. And if you agree with what the judge has done, you call them heroic and honest. . . . To conservatives, activist judges are those who permit or compel activity in which the opinion of conservatives can only be done in the legislative branch. To liberals, activist judges are judges who prevent the government from doing the things the Legislature wants to do.

(These quotes by Napolitano can be found in Mariah Wojdacz’s LegalZoom.com commentary, “Activist Judges: Why Are They Creating Such a Stir?”)


Of course, there are also those who maintain that gay marriage will undermine the common good of society. In the February 16, 2004 edition of Christianity Today, for instance, Drs. Robert Benne and Gerald McDermott of Roanoke College published an editorial entitled “Speaking Out: Why Gay Marriage Would Be Harmful”. One of their arguments against gay marriage is as follows:

We believe that gay marriage can only be imposed by activist judges, not by the democratic will of the people. The vast majority of people define marriage as the life-long union of a man and a woman. They will strongly resist definition.

I appreciate Jim Burroway’s response to this particular line of argument. In his online article, “Refuting Benne and McDermott”, Burroway notes:

Many surveys certainly do show that varying margins of a majority (slim to wide, depending on how the polls were worded) oppose gay marriage. Some thirty years ago, nearly two-thirds of all Americans opposed interracial marriage. But times change, and so do attitudes. Those today who disapprove of racially-mixed marriages are in the distinct minority. But those numbers didn’t start to decline until the “activist judges” on the U.S. Supreme Court struck down state laws restricting such marriages when legislatures failed to act. If we had waited until legislatures got around to changing the laws in many of these states, justice for many interracial couples would have been delayed for at least another generation. This generation of gay men and women is no longer willing to wait.

I also like to recall how if the broader issue of racial segregation had been put “on the ballot” for “the people” to decide, it would not have been abolished when it was in the U.S. – especially in a number of Southern states. And I’m sure those who oppose gay marriage are not against the various court decisions that helped abolish segregation and other forms of racial discrimination. Yet, clearly, protecting and granting civil rights to gay people is a different story for them.

But what about this idea that allowing same-sex marriage will lead to society’s downfall? Is it worth worrying about? I for one don’t believe it is, and my reasons for thinking this way can, in large part, be found in the following excerpts from an article entitled “EU Countries Divided on Same-Sex Marriage” in the March/April 2007 issue of The Gay and Lesbian Review. I think this particular article provides both insight and hope in our deliberations on the issue of same-sex marriage in the US. It may also help explain why some are so rabidly opposed to any legal recognition of same-sex marriage taking hold here.

Another striking pattern to emerge [from the survey] is the extent to which public opinion reflects the actual legal situation in these countries. Acceptance of same-sex marriage is highest in countries where marriage or its legal equivalent is currently on the books, which is the case in the Netherlands, Belgium, Spain, Sweden, and the UK. Most of the other countries of Western Europe – France, Germany, Ireland, the Czech Republic, among others – also recognize same-sex couples as eligible for many benefits of marriage. Presumably the legal situation reflects public opinion in these countries to a large extent; but it may also be the case that the existence of same-sex marriage as a legal reality has a liberalizing effect on public opinion. [Basically, people come to realize that same-sex marriage doesn’t herald the end of the world!]

One thing is clear: countries that have had an active gay rights movement for the longest are the ones most likely to have both legal protections and favorable public opinion on these issues. From a baseline of nearly universal rejection in the mid-20th century, an atmosphere of tolerance has evolved only slowly and painstakingly as a GLBT rights movement has taken hold in Europe and the reality of gay people has been acknowledged and embraced.

Above: John Lewis (right) and his partner of 21 years, Stuart Gaffney, hold hands while waiting for a decision by California’s Supreme Court in San Francisco, California, May 15, 2008. The California Supreme Court ruled on Thursday the state cannot bar same-sex marriages, marking a major victory for gay rights advocates that may have national implications. (REUTERS/Kimberly White)

See also the previous Wild Reed posts:

The Changing Face of “Traditional Marriage”
The Real Gay Agenda
Naming and Confronting Bigotry
Love is Love
On Civil Unions and Christian Tradition
Separate is Not Equal
Mainstream Voice of “Dear Abby” Supports Gay Marriage
New Studies: Gay Couples as Committed as Straight Couples
Grandma Knows Best
Truth Telling: The Greatest of Sins in a Dysfunctional Church
Just Love
The Many Manifestations of God’s Loving Embrace
Good News from Minnesota

Recommended Off-site Links:
California Court Affirms Right to Gay Marriage - Adam Liptak (New York Times, May 15, 2008).
California Chief Justice Says Same-sex Marriage Ruling Was One of His Toughest- Maura Dolan (Los Angeles Times, May 18, 2008).
Many Gay Couples Find Lasting Love - Heather Cassell (Bay Area Reporter, February 8, 2007).

Opening image: John Lewis, right, hugs his partner, Stuart Gaffney, left, outside of the California State Supreme Court building in San Francisco, Thursday, May 15, 2008. (AP Photo/Paul Sakuma)

* Here’s an interesting aside: San Francisco Mayor Gavin Newsom (pictured at right with his fiancée Jennifer Siebel during a rally this morning inside City Hall in San Francisco) was baptized and raised Roman Catholic. He describes himself as an “Irish-Catholic rebel...in some respects, but one that still has tremendous admiration for the Church and very strong faith.” When asked about the current state of the Catholic Church in an interview, he said the church was in crisis. Newsom said he stays with the church because of his “strong connection to a greater purpose, and . . . higher being.” He attends church infrequently but said he has a “strong sense of faith that is perennial: day in and day out.”