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Silver Lining in the Golden State What the California Marriage Ruling Means for the Future of Gay Rights Frontiers Magazine March 31, 2005 By Zachary A. Kramer Last year, approximately 4,000 gay and lesbian couples got married in San Francisco after Mayor Gavin Newsom began issuing licenses in defiance of the state's ban on same-sex marriage. Couples from all over the country flocked to San Francisco to exercise their newfound right to marry. While joyous, the occasion did not last long. The California Supreme Court stopped the nuptials and invalidated the marriages, ruling it was beyond Newsom's authority to defy the state. Determined to have the California ban overturned, the city and county of San Francisco, along with a group of committed couples, brought a lawsuit challenging the marriage prohibition. That ban arises out of two laws, which, taken together, provide that only opposite-sex couples can marry in California, and that the state will not recognize same-sex marriages entered into in other states. In mid-March, a trial court agreed with the plaintiffs: Judge Richard A. Kramer (no relation) of San Francisco County Superior Court ruled that California's ban on same-sex marriage violated the state Constitution. This is a monumental decision, both for gays in California and for the gay-rights movement in general. Courts are increasingly accepting the idea that it is unlawful for states to restrict marriage to opposite-sex couples. All over the country--indeed, in many parts of the world--numerous courts have already ruled in favor of same-sex marriage. Every victory, however small or temporary, brings us closer to the ideals of dignity and equal treatment not as abstract principles, but attainable rights essential to full citizenship. But what does this decision mean for the future of same-sex marriage in this country? Judge Kramer's decision, technically, is a tentative one. All "tentative" means in this instance, however, is that the court will not finalize the decision until the parties have a chance to propose possible revisions to the text of the opinion. In other words, the opinion is a rough draft. Although the wording may be slightly different when the opinion is finalized, the substance of the decision is final. In terms of the legal time line, Kramer's decision is the first step in a long process. California has a three-tiered judicial system. On top of the trial courts sit two levels of appellate courts: the California Court of Appeals and the California Supreme Court. While the California Supreme Court has the power to bypass the intermediate court and take direct review of this case, it is unclear at this point how the appeals process will unfold. This much, however, is certain: Supporters of the ban will appeal the decision, and we will not know the final outcome until the California Supreme Court decides the case. It is anyone's guess how that court will rule. As for the political consequences of the opinion, it has already generated criticism. Just moments after the decision came down, same-sex marriage opponents branded Kramer an activist and called, yet again, for constitutional amendments prohibiting same-sex marriage. In fact, there are two bills currently pending in the state Legislature that will put a state constitutional amendment barring same-sex marriage on the ballot next fall. And it took President Bush only a couple of days to restate his support for a federal marriage amendment. But the political landscape is not all bleak. Regardless of how vigorously same-sex marriage opponents champion their cause, these amendments are unlikely to pass. Many Americans may be uncomfortable with same-sex marriage, but they are unlikely to support writing homophobia into the U.S. Constitution. And, closer to home, Californians have led the way on legislative protections for same-sex couples, passing the most comprehensive domestic-partnership law outside of Vermont. Legislative success, while harder to come by than court victories, is hardly out of reach. Gays and lesbians are succeeding on the most important level of public debate--the cultural level. Committed couples, by merely living their daily lives, demonstrate the dignity of same-sex relationships. With exposure comes acceptance, and acceptance breeds progress. People are learning, albeit slowly, that same-sex couples pose no threat to society--the Massachusetts sky is intact and same-sex families across the country are flourishing. With the right to marry now clearly in sight, Kramer's decision takes gays and lesbians a step further along the long path toward equality. Zachary A. Kramer, a lecturer at the UCLA School of Law, is the first Williams Teaching Fellow at the Charles R. Williams Project on Sexual Orientation Law and Public Policy. | ||||||