State high court to review ban on same-sex marriage

Times Staff Writer

The California Supreme Court agreed unanimously Wednesday to decide whether same-sex couples should be permitted to wed, prolonging the contentious legal battle for another year.

Meeting in closed session, the state’s highest court voted without comment to review an October appeals’ court ruling that upheld the prohibition on same-sex marriage. The court is not expected to issue a ruling until the end of next year.

Wednesday’s decision does not necessarily mean that the state high court disagrees with the lower court ruling.

Although the Supreme Court could have avoided the contentious debate and let the ruling stand, the court often reviews decisions it supports if the case has statewide importance.


Christian conservatives, satisfied with the appeals’ court decision, had urged the court not to take up the case. But a lawyer for one of the groups opposed to same-sex marriage expressed confidence Wednesday that his side would prevail.

“History, common sense and legal precedent are on our side,” said Mathew D. Staver, founder of Liberty Counsel, which promotes traditional Christian values in the law. “Marriage as the union of one man and one woman transcends political ideology and is grounded in millennia of human history.”

Other opponents of same-sex marriage called the court’s decision ominous.

Randy Thomasson, a spokesman for the VoteYesMarriage.comcoalition, which hopes to place an initiative against same-sex marriage on the 2008 ballot, said the measure would be “the only way to stop judges and politicians from destroying the beautiful, natural institution of marriage between a man and a woman.”


Former Assemblyman Larry Bowler (R-Elk Grove), who is also backing the proposed ballot measure, complained that the state high court was “scheming to destroy marriage and the people’s right to vote on marriage.”

Bowler said he believed that the three women on the seven-member court were prepared to support same-sex marriage.

Justices Joyce Kennard and Kathryn Mickle Werdegar voted in an earlier case against an immediate nullification of same-sex marriage licenses granted in 2004 by San Francisco. But the justices have not expressed their views about the constitutionality of the state’s marriage laws.

Justice Carol Corrigan, the court’s newest member, also has never publicly confided her views of same-sex marriage, but Bowler said gay rights groups support her.


Legal analysts suspect the court is divided on same-sex marriage but more likely than not to rule against it. The moderately conservative court has six Republicans and one Democrat and is generally viewed as cautious.

The Supreme Court’s decision on the state constitutional question is final.

Gay rights groups said Wednesday’s decision gave them hope.

“This is yet another indication that the California Supreme Court appreciates the importance of this issue -- not only for same-sex couples and their children, but for the entire state,” said Shannon Minter, legal director for the National Center for Lesbian Rights and lead counsel in one of the marriage cases before the court.


Jon W. Davidson, legal director of Lambda Legal and one of the attorneys in the marriage cases, said it was up to the court to permit same-sex marriage in the wake of Gov. Arnold Schwarzenegger’s veto of a bill giving gay couples the right to wed.

“So long as California’s statutes deny same-sex couples and their children equality,” Davidson said, “it’s up to the California Supreme Court to decide the issue once and for all.”

The debate over same-sex marriage reached the courts two years ago when the city of San Francisco granted nearly 4,000 marriage licenses to gay couples.

The state high court later nullified those licenses, but reserved a final decision on the constitutionality of the marriage laws until the lower courts had reviewed them.


San Francisco City Atty. Dennis J. Herrera, whose office is among those still challenging the gay marriage ban, said the city was “asserting the rights of equality and privacy uniquely enshrined in our state Constitution.”

“We are also asking the Supreme Court to do what the Court of Appeal did not -- to base its decision on constitutional principles rather than on its impressions of popular opinion,” Herrera said.

Atty. Gen. Bill Lockyer has defended the state’s marriage laws but nevertheless urged the state high court to take up the issue to provide final resolution.

“This is one of the most important issues confronting California, and the Supreme Court is the only entity that can provide the people the legal clarity needed on the question,” Tom Dresslar, a spokesman for Lockyer, said after the court’s action.


The state high courts of Washington, New York and New Jersey, which also have reviewed same-sex marriage, have refused to extend marriage rights to gays.

Only the state of Massachusetts now permits gay couples to wed.