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 Last week, California became the latest jurisdiction to overturn a ban on same-sex marriage, prompting renewed calls for Rudd to follow suit.
“To the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.”
Thus did Chief Justice Ronald George describe the Supreme Court’s decision to allow same-sex marriage in the US state of California last week, resulting in scenes of jubilation in the streets of San Francisco last Thursday.
In a historic move, the state’s Supreme Court ruled 4-to-3 and declared unconstitutional a ban on gay marriage. The decision, which some observers say has significant implications well beyond the borders of California, brings to an end nearly four years of legal disputes and countless more of social inequality.
In a 120-page ruling, George, writing on behalf of the majority, concluded that bans preventing same-sex couples from marrying amounted, quite simply, to discrimination. Like race, gender and religion, sexual orientation “does not constitute a legitimate basis upon which to deny or withhold legal rights,” he wrote.
The court also found that giving the unions of same-sex couples a name that was separate and distinct from ‘marriage’ reduced gays to “second-class citizens” who, under the law, were being treated differently, or less favourably, than their heterosexual counterparts. “Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest,” George wrote.
In other words: equality for same-sex couples. And now.
The overturning of the ban brings to an end a legal drama that began in 2004 when Gavin Newsom, the Mayor of San Francisco, began issuing marriage licenses for same-sex couples.
The state’s Supreme Court moved to annul the marriages, citing Proposition 22, a voter initiative passed by a substantial majority in 2000. It was a measure which defined marriage as between a man and a woman. The marriages were soon deemed void.
As a result of the annulments, lawsuits by same-sex couples were filed shortly thereafter. Proposition 22, they said, was unconstitutional.
Four years later, the state’s Supreme Court has ruled in the plaintiffs’ favour.
“We have waited more than 50 years for the opportunity to marry,” said Phyllis Lyon who, along with her partner of 56 years, were plaintiffs in the case. “We are thrilled that this day has finally come.”
So what does this ruling mean for the issue of same-sex marriage, particularly in the US?
Some say it paves the way for other states to follow. “California sets the tone, and this will have a huge effect across the nation to bringing wider acceptance for gay and lesbian couples,” said Shannon Minter, attorney for one of the plaintiffs in the case, the National Center for Lesbian Rights.
Others say it’s symbolism. For even though same-sex couples already enjoy most of the same legal and financial rights as opposite-sex couples in California, full equality can only be achieved when gays and lesbians are allowed to marry.
And others see the significance of the state itself, whose Supreme Court has a history of landmark rulings. California was the first state in the US to remove laws against interracial marriages.
Not surprisingly, the ruling has also galvanised opponents of same-sex marriage, who have been as vocal in their discontent as ever. Many are pinning their hopes for an upcoming ballot in November, which they hope will amend the constitution and reverse last week’s ruling.
But in the midst of naysayers also came allies, including, unexpectedly, Governor Arnold Schwarzenegger, who has previously vetoed legislation that would have allowed same-sex marriages on two occasions. Schwarzenegger said he respects the court’s decision and would “not support an amendment to the Constitution that would overturn this state Supreme Court ruling”.
So what does this mean for Australians? On the surface, not much, because any marriage between same-sex couples in California (or anywhere) would simply not be recognised in this country.
Yet the move has prompted more calls on the Rudd government to grant same-sex marriage in Australia. Said Peter Furness, National Convenor of Australian Marriage Equality: “It’s time the Australian government pulled its head out of the sand. As the number of jurisdictions that deliver full equality grows, Australia’s bigotry become even more excruciatingly obvious”.
The Greens, meanwhile, reaffirmed its pledge in its fight against discrimination towards the GLBT community.
“If Republican Governor Arnold Schwarzenegger is going with the Californian Supreme Court ruling that the ban on same-sex marriage was unconstitutional, surely Kevin Rudd and Nicola Roxen can back growing majority opinion in Australia that their support for the ban, while old-time quaint and Howardian, is wrong,” said Senator Bob Brown.
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