Sunday, April 17, 2005

First victory in California

The San Francisco Superior Court has ruled that California's ban on gay marriage violates the state's constitution. Drawing on precedents that marriage is a fundamental human right and "one of the vital personal rights essential to the orderly pursuit of happiness by free men", the court found that there is no compelling state interest for it to be limited to partners of opposite gender. It also found that civil unions were not enough:

The state's position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well.

The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal.

The quote from Brown v Board of Education is not accidental; the court correctly notes the parallels with the great civil rights cases of the 50's, particularly those dealing with miscegenation and interracial marriage. And using those precedents, it argues strongly that limiting marriage to partners of opposite gender is no more justifiable than limiting it to partners of the same race.

This is good news for Californians, but it is only the beginning of the process. The ruling has already been appealed, and must work its way slowly through the California court system, which could take years.


Having the courts, rather than the people, grant the rights to gay marriage is IMO counter-productive in the long term. It alienates moderates centrists who then support a state constitutional amendment to over-turn the court. There is a huge backlash in the US against activist courts, even when some people agree with the outcomes.

I suspect abortion would not be the issue it is today in the US, if instead of Roe vs Wade legalise abortions, it had been done state by state through the legislatures and referenda.

Posted by David Farrar : 4/17/2005 07:21:00 AM

It may very well be counterproductive in the long-term - but I am not going to criticise anybody who is denied equality from using the legal system to improve their condition. The US constitution (and many state ones) includes an "equal protection" clause. I can hardly blame people for arguing that it should mean what it says.

Posted by Idiot/Savant : 4/17/2005 07:00:00 PM