Janet M. LaRue

I was a Californian for 40 years, so I have to ask my former fellow citizens: Are you going to sit by and do nothing while four black-robed despots take away your right to govern yourselves?

By one vote, the California Supreme Court today rejected the expressed will of Californians to limit marriage to a man and a woman.

In 2000, a 61.4 percent majority of Californians passed Proposition 22, which limited marriage to a man and a woman and precluded California’s recognition of same-sex “marriages” consummated elsewhere. In a decision derided by a dissenting California justice as “legal jujitsu,” the Supreme Court majority held that the ban on same-sex marriage is an infringement of the fundamental state constitutional right to marry.

California is now the second state after Massachusetts where homosexuals will be allowed to “marry.” But unlike Massachusetts, California has no law that prohibits homosexual couples living in states that don’t recognize same-sex “marriage” from marrying in the Golden State. The California Supreme Court has opened the door to a legal battle royal across the nation. Homosexual couples will flock to California to marry, return to their home states, and file lawsuits to force the recognition of their Land of Fruits and Nuts marriages—and the destruction of the 1996 federal Defense of Marriage Act.

According to the California court majority, the state’s same-sex marriage ban violates the equal protection clause of the California Constitution because it discriminates on the basis of sexual orientation, which the majority declared “a suspect classification” akin to race, sex and religion. In Re Marriage Cases, S147999.

The 4-3 decision, written by Chief Justice Ronald M. George, rules that even though California’s domestic partnership (DP) laws give same-sex partners “all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage,” the DP scheme violates the California Constitution because of its “failure to designate the official relationship of same-sex couples as marriage.” George writes:

In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.


Janet M. LaRue

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; Legal Studies Director at Family Research Council; and Senior Counsel for the National Law Center for Children and Families. Be the first to read Janet LaRue's column. Sign up today and receive Townhall.com delivered each morning to your inbox.