The California Supreme Court today overturned the earlier ban on the recognition of gay union as “marriage.”
The bench was made up of Chief Justice Ronald M. George, Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan.
In California, the union of a man and a woman can be called “marriage,” with a same-sex union called “domestic partnership.” According to the court, “The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.”
Chief Justice George wrote the majority opinion, with Justices Kennard, Werdegar and Moreno concurring. Justice Kennard wrote a separate concurring opinion, to explain “how the decision is consistent with Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), to note Lockyer’s effect on marriages of same-sex couples previously performed in California.” Justices Baxter and Corrigan wrote separate dissenting opinions, with Justice Chin concurring with Justice Baxter.
The Majority Opinion states:
Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.” [ PDF ]
The court said a “writ of mandate” will direct California state officials to effect the ruling, so local authorities can comply with it. If not further extended by the court, the decision takes effect in 30 days.
In what appears to be a strange comment in the majority opinon, the Chief Justice says:
“In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.”
It appears the justices made an opinion based on an unclear part of law because they are not really sure what the legislature really meant. ( “probable legislative intent” }