Will California Legalize Gay Marriage?

Homosexual Couples want to enjoy the legal, financial, and social benefits that marriage affords Heterosexual Couples.

San Francisco and approximately a dozen homosexual couples have filed an appeal to the California Supreme Court after an appeals court ruled against same-sex marriage.  If the California Supreme Court takes the case, a decision on same-sex marriage will most likely come down in a year or more.  The justices have 90 days to announce whether they will review the case.

Gay marriage advocates hope to overturn the ruling that said limiting marriage to a man and a woman does not violate the constitutional rights of gays and lesbians.  Many advocates argue that the Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples.  Most significantly, the economic and financial inequities that are borne by same-sex domestic partners are also borne by their children.  Even though same-sex couples are provided fewer benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering a marriage.  The same holds true with respect to dissolving a domestic partnership.

In October of 2006, the 1st District Court of Appeal ruled in a 2-1 vote, that its role was not to define marriage.  The Court noted that since 61% of California voters declared in 2000 that marriage as a union is between man and a woman under Proposition 22, the Court would not trump California voters.

The Appeals court ruled that California's existing laws do not discriminate because gays and lesbians get most of the rights of marriage the state confers to heterosexual married couples.  Gay advocates have expressed that being the recipients of MOST of the rights conferred to married couples, and not ALL of the rights, is where the discrimination comes in.

The California Supreme Court, made up of seven Justices, is not obligated to review the appellate court's decision, which overturned an earlier decision by a San Francisco trial judge.  If the Court does not take the case, the appellate court's rule stands.

San Francisco Mayor, Gavin Newsom put the marriage debate in the national spotlight by allowing same-sex couples to get married at City Hall in 2004.  California's justices stopped Mayor Newsom and ordered that the 4,037 marriage licenses were null and void.  The Court further ruled that the mayor did not have authority to make marriage law.

The big question then becomes, who has the authority to legalize gay marriage.  The Courts have ruled that the Mayor does not have authority to legalize gay marriage.  The Appellate Court recently ruled that it does not have the authority either.  Thus, it appears as if the California voters are entrusted with this authority.  However, the California Supreme Court may put an end to this debate.  Gay advocates are hopeful.  Since 2004, when Massachusetts became the first state to legalize gay marriage, advocates have seen California as one of their best hopes for expanding the marriage movement.

In less than 90 days, we will know who has the authority to legalize marriage, if anyone.  Read the Appellate Court's opinion decided October 25, 2006. Mark Lewis and Dennis Winslow, et. al. v. Gwendolyn L. Harris, etc., et. al.

The family law practice at Tredway, Lumsdaine & Doyle includes equal representation of married opposite-sex couples and committed same-sex couples, including partners wishing to dissolve their "marriage" under the Domestic Partnership Act.