Thursday, May 15, 2008

Loving legalized in California

The California Supreme Court today ruled that the state must allow the same marriage rights by the same name to gay couples that the state grants to straight couples. They ruled by the reasoning presented in this very blog, which follows the reasoning of the Massachusetts high court in 2004. One of the precedents cited by the court was California's own version of Loving v. Virginia, the 1947 case Perez v. Sharp in which the California Supreme Court, 19 years ahead of the US Supreme Court, became the first court in the nation to rule that a ban on interracial marriage was unconstitutional.

The decision was based on equal protection provisions of the California state constitution. It appears likely that a referendum will be on the November ballot to change the California constitution to ban gay marriage. The state legislature has already voted twice to enact gay marriage in the state, and Governor Schwarzenegger has twice vetoed the measure, but he has already said he will oppose the referendum if it appears on the ballot in the fall (yeah, go figure).

California already allowed almost (but not quite) all the same rights to same-sex couples as to opposite-sex couples. The California court says the state must supply all the same rights and the same name. This is like Brown v. Board of Education (1954) and Loving v. Virginia all in one. New Jersey's high court last year ruled the state had to provide the same rights to same-sex couples but not the name and allowed the state legislature to establish civil unions with the same rights under state law as marriage. That advanced same-sex couples in New Jersey to the separate-but-equal status of Plessy v. Ferguson of 1896. The New Jersey court did suggest they would be willing to reconsider the name issue in the future and possibly advance gay rights in that state past 19th century jurisprudence.

There is an additional legal benefit to full-on marriage beyond the name. Civil unions or domestic partnerships are defined differently in each state and aren't necessarily recognized in other states that allow civil unions, and couples might have to register a new union or partnership if they move to a new state. Marriage, however, is clearly defined and states automatically recognize marriages conferred in other states (with the exception of gay marriages, courtesy of the Defense of Marriage Act). So a couple married in California would still have the protections of marriage if they moved to Massachusetts or any other state that recognizes gay marriage. It also means that gay couples married in Massachusetts and currently residing in California could get divorced in California, should that be necessary. It's a little more complicated for married gay couples who move from California or Massachusetts to New Jersey.

I think it is inevitable that all state courts and eventually the US Supreme Court will rule that states must allow gay marriage, absent constitutional amendments expressly banning it. It took 19 years from the first state court's ruling in favor of interracial marriage until the Supreme Court applied the reasoning nationwide. By that precedent, we could see the gay marriage equivalent of Loving v. Virginia at the federal level around 2023.

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