Legal News - Congratulations California: dreams come true

May 18, 2021

Congratulations California: dreams come true
State's highest court rules for same-sex marriage

By Kevin Bourassa and Joe Varnell

California's 1st married same-sex couple have waited 56 years for this day Canada's 1st legally married gay couple Joe Varnell and Kevin Bourassa with California's 1st legally married same-sex couple Del Martin and Phyllis Lyons (centre) From Equality Forum: "Del Martin and Phyllis Lyons met in 1952 and have been together ever since. On February 12, 2004, Del and Phyllis were the first couple to be married in San Francisco. Mayor Gavin Newsom officiated. Shortly thereafter, an appellate court invalidated their marriage because under California law only a man and a woman can marry. Del and Phyllis were among the plaintiffs that challenged that definition. The groundwork for Del and Phyllis to marry began sixty years ago when 40 states had criminal laws that prohibited whites and blacks from marrying. These miscegenation laws were routinely upheld by state and federal courts. In 1948, the first of these laws was struck down by the California Supreme Court. It was the first appellate opinion to affirm marriage equality. There are few more fundamental freedoms than the right of each citizen to choose the life partner of his/her choice and to have society treat that relationship and their children with equality. Del Martin and Phyllis Lyon will be the first couple to be married with equal rights and responsibilities pursuant to the California Supreme Court's decision. It took 56 years. " Equality Forum is a national and international GLBT civil rights organization with an educational focus. Equality Forum coordinates GLBT History Month, produces documentary films, undertakes high impact initiatives and presents the largest annual international GLBT civil rights forum.

On May 15th the California Supreme Court released a long anticipated defense of dignity and equality in a 4-3 ruling in favour of equal marriage for same-sex couples.

When we heard the news, we immediately thought of our friends and supporters in California, and indeed across the United States, who have been fighting for years to exercise their rights as equal citizens under the law.

We have been away from our web site and related advocacy activities, enjoying the goods and goals of married life that we fought so hard for in Canada. It's been nice getting on with other things. A writer working on a piece for Chatelaine, got in touch with us by phone when she found emails to us were bouncing back (we have been ignoring our email for some time now and the box was full). We were indifferent.

But the happy news from California has caused us to dust off our keyboard, reconnect to our website and send out congratulations to Del Martin and Phyllis Lyons, a couple whom we met in California, who will be the first same-sex couple to be legally married in California, when the 30-day waiting period ends, following last week's judgment.

We congratulate couples and early activists like Molly MacKay and Davina Kotulski for their example, and support, as they told their personal stories and encouraged others to do the same. Through their personal engagement, and through the organizations they have worked with, they have been instrumental in helping Californians understand the basic human principals involved in marriage equality.

We applaud political leaders for their courage, including California Assemblyman Mark Leno and San Francisco Mayor Gavin Newsom.

We thank human rights workers including the board of directors and members of Equality California, Kate Kendell, director of the National Center for Lesbian Rights, Marriage Equality USA, and Equality Forum for their vision and commitment in U.S., and for their support of our own efforts in Canada.

Canadian tourism representatives are already downplaying the potential impact to being the destination of choice for marriage-minded LGBT travelers ("California gay marriage law won't likely hurt travel to B.C.", Vancouver Sun, May 17, 2021), but wedding planners in Toronto are nervous ("Wedding cake bittersweet", by Daniel Dale, The Toronto Star, May 16, 2008), while the San Francisco Chronicle has a story headlined "SF hopes for big slice of gay marriage money" (May 18, 2021). We are thrilled to add more countries and states to our list of locations offering equal marriage for same-sex couples.

The Ruling

"The question we must address is whether ...the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution," the largely Republican-appointed court wrote in the majority opinion.

"As past cases establish," the court summarized, "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

"Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."

The court rejected the concept of a "separate but equal regime" such as is found in England, citing Canada's Supreme Court in a landmark 1999 case that also bolstered are own marriage case: “One factor which may demonstrate that legislation that treats a claimant differently has the effect of demeaning the claimant’s dignity is the existence of preexisting disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. . . . ‘ . . . It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon them, since they are already vulnerable.’ ” (M. v. H. [1999] 2 S.C.R. 3, 54-55 [¶ 68].)

"One of the core elements of the right to establish an officially recognized family," the May 15th decision continued, "... is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect."

The court stood against the position that gay and lesbian couples represent a threat to society and therefore discriminatory practices by the state are justified.

"A number of factors lead us to this conclusion," the court said, "First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

"Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

"Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

"Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples."

California's highest court wrote words that the gay and lesbian community have longed to see from the state.

"There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children."

Next Steps

Opponents are now targeting a November ballot that would overturn the court's decision by amending the state Constitution. They hope to extend the 30-day waiting period that follows the court's May 15th judgment to November, in order to prevent marriages from being performed prior to the ballot, but observers believe a delay will not be granted.

California's Governor Schwarzeneggar accepted the court's decision and has promised to not support, and perhaps fight, the November ballot ("Governor backs same-sex marriage ruling", by Matthew Yi, San Francisco Chronicle, May 17, 2021).

Kevin Bourassa and Joe Varnell with San Francisco mayor Gavin Newsom

“It’s going to be the largest, most expensive and most hard fought L.G.B.T. ballot measure in the history of the country,” Geoff Kors, executive director of Equality California, told the New York Times ("California Ruling on Same-Sex Marriage Fuels a Battle, Rather Than Ending It", by Jesse McKinley, May 18, 2021) .

No matter where you live, please consider supporting Equality For All's campaign fund to preserve equal marriage for same-sex couples.

As they did in San Francisco, same-sex couples from across America are hopeful they will begin marrying in California before November. American civil rights will suddenly be back on the front-burner in the media and in the Presidential race.

The major of San Francisco well knows that once the door is open, it will be very hard to close.

“As we move forward and literally tens of thousands of couples are married, the question to the voters changes,” Mr. Gavin Newsom said in the same NY Times story. “It’s no longer denying something to people that they never had. It’s taking something away that they’ve already enjoyed. And that’s a much more difficult thing to do.”

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