The court on marriage

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On May 15, 2008, a divided California Supreme Court ruled that marriage is a constitutional right for all couples. The court therefore ordered two sections of state marriage law struck down so that marriage would become available to gay couples. Previously, gay couples could only obtain domestic partnership licenses.

One of the stricken sections - 308.5 - has special importance: The law was placed on the books because a majority of voters passed it in 2000, as Proposition 22. California lawmakers are prohibited from amending or repealing section 308.5 without approval from voters; however, the court ordered 308.5 stricken to comply with its findings about gay couples’ rights to marry.

From the majority opinion in In re Marriage Cases, written by Chief Justice Ronald M. George with Associate Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno concurring:

What was the legal issue before the court?

“The question we must address is whether…the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.”

Is there a constitutional right to marry?

Yes. “Although our state Constitution does not contain any explicit reference to a ‘right to marry,’ past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution.”

Does this right to marry extend to gay couples?

Yes. “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 individuals and couples, without regard to their sexual orientation.”

Does the right to marry include the right to choose one’s partner?

Yes. “These core substantive rights [to marry] include, most fundamentally, the opportunity of an individual to establish - with the person with whom the individual has chosen to share his or her life - an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.”

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About the Author
Cheryl Wetzstein

Cheryl Wetzstein

Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor.

Beginning in 1994, Mrs. Wetzstein worked exclusively ...

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