DENIS STAUNTON AMERICA:THIS WEEK'S decision by California's supreme court to overturn the state's ban on same-sex marriage could be the most significant advance in gay rights for decades - even if voters re-instate the ban in a constitutional amendment later this year.
The court ruled in a 4-3 split decision that laws excluding gay couples from marriage were unconstitutional, drawing on a landmark 1948 ruling that struck down California's ban on interracial marriages. In his majority opinion, Chief Justice Ronald M George said that the right to marry was so fundamental that there was no justification for excluding those who were attracted to their own sex.
"In light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual's opportunity to live a happy, meaningful and satisfying life as a full member of society - the California constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation," he wrote.
Sixty-one per cent of California voters approved a ballot measure in 2000 stating that "only marriage between a man and a woman is valid and recognised in California". The initiative came after San Francisco mayor Gavin Newsom started issuing marriage licenses to gay and lesbian couples.
California later passed a domestic partnership bill that gives same-sex couples almost all the rights of married couples but the court ruled that calling gay partnerships by a different name would lead people to see them as a mark of second-class citizenship. George wrote that it was more than a matter of semantics to stress that gay couples were not looking for "same-sex marriage" but for the right to marry like everyone else.
"It is important both analytically and from the standpoint of fairness to plaintiffs' argument that we recognise they are not seeking to create a new constitutional right - the right to 'same-sex marriage' - or to change, modify, or (as some have suggested) 'deinstitutionalise' the existing institution of marriage," he wrote.
"Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits - accompanied by the same mutual responsibilities and obligations - as this constitutional right affords to opposite-sex couples." Perhaps the most significant element in the court's decision is its ruling that sexual orientation is a "suspect classification" under the California constitution, which means that any state statute or policy that discriminates based on sexual orientation is subject to the highest level of judicial scrutiny. No other state, including Massachusetts, has offered the same level of constitutional protection to gays and lesbians.
The California court ruled that the state now bears the burden of proof that discrimination on the basis of sexual orientation is justified by a compelling interest. The court found that the traditional argument that marriage was about producing children was inadequate.
"Whether or not the state's interest in encouraging responsible procreation properly can be viewed as a reasonably conceivable justification for the statutory limitation of marriage to a man and a woman for purposes of the rational basis equal protection standard, this interest clearly does not provide an appropriate basis for defining or limiting the scope of the constitutional right to marry," George wrote.
"None of the past cases discussing the right to marry - and identifying this right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution - contains any suggestion that the constitutional right to marry is possessed only by individuals who can be counted upon to take precautions in planning for parenthood. Thus, although the state undeniably has a legitimate interest in promoting 'responsible procreation', that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim the protection of the fundamental constitutional right to marry."
The three dissenting judges said that, even if they personally favoured gay marriage rights, the court should leave it to the Californian people and their legislators to decide how to define marriage.
Gay rights campaigners argue that, in a constitutional democracy, the majority should not always get its way. They point out that, 10 years after the 1948 ruling that lifted the ban on interracial marriages, Gallup reported that 94 per cent of white Americans still believed such marriages should be banned.
George, who was appointed to the bench by Ronald Reagan in 1972, said in his opinion that tradition and the popular mood were no excuse for perpetuating injustice.
"Even the most familiar and generally accepted of social policies and traditions often mask an unfairness and inequality that frequently is not recognised or appreciated by those not directly harmed," he wrote.