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Same-sex marriage in Ca. - Mildred Loving's legacy

This article first appeared in the St. Louis Beacon: The state Supreme Court's 4-3 decision upholding same-sex marriage is likely to face an almost immediate challenge at the ballot box.  Opponents of same-sex marriage already had been collecting names to put the issue on the ballot in November - a move that could affect who comes out to vote in California during the presidential election. (Gov. Arnold Schwarzenegger says he respects the court decision and will not work in favor of the ballot initiative to overturn it.)

Even if the ballot measure were approved in November, a key part of the state Supreme Court's decision would likely stand - that sexual orientation should receive the highest constitutional protection, just like race.  California is the first state to take that position.  The U.S. Supreme Court has not accorded sexual orientation as much protection as race.

Giving sexual orientation the highest level of constitutional protection means that almost no legal distinctions based on sexual orientation will be permitted in California.

The California court's majority based its holding on a 1948 decision - Perez v. Sharp - in which it threw out state anti-miscegenation laws.  The court noted that the 1948 decision was widely reviled at the time but now is universally accepted as correct.

Interracial marriage had historically been banned in California at the time of the 1948 decision, just as same-sex marriage has historically been rejected in California, the court noted. Just as historical practice did not justify the interracial ban, it does not justify the ban against same-sex marriage, the court reasoned.

The 1948 Perez decision was almost two decades before Mildred Loving's case, Loving v. Virginia, in which the U.S. Supreme Court finally concluded that state laws against interracial marriages were unconstitutional.  

The California court referred to Loving and Perez as the basis for deciding that laws could not bar same-sex marriage.  The court pointed out that no one suggested at the time of Loving that the court protect a right to a separate entity called "interracial marriage."  Similarly, California can't call same-sex unions by a name other than marriage - such as the "domestic partnership" classification already permitted under California law.

The majority ruled that people have a fundamental right to marry under the California constitution.  It noted that the federal constitution grants that right as well, although it did not base its ruling on the federal constitution.  That means, however, that even if California voters change the state constitution to bar gay marriage, the California Supreme Court could come back and throw out the ballot initiative under its interpretation of the federal constitution.

The California court acknowledged that same-sex domestic partners had virtually the same rights as married opposite sex couples in California.  But it concluded that the state must use the same term for gay marriage as for opposite sex marriage.  The state could decide not to use the term marriage for any union, the court said.  But it reasoned that the people would prefer to extend the term marriage to all unions, rather than to deny it to all couples.

Critics, and the dissenters, said the court had taken on legislative powers courts should not wield under a proper separation of powers.

Here are some questions:

1. Did the court exceed its authority?

2. Do you think the decision will help Republicans in California?

3. Do you agree with the court when it says that recognizing same-sex unions as marriages does not take anything away from traditional marriages?

4. Do you agree with the court when it says that marriage is primarily for the individual rather than the state and that the state's interest in procreation does not justify distinctions between same-sex and traditional marriages? 

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