News Column

Same-sex Marriage Gets Final OK in California

August 15, 2013

Bob Egelko

same sex wedding
Lesbians in marriage ceremony (file photo)

The California Supreme Court unanimously rejected an attempt to revive the state's ban on same-sex marriage Wednesday, ending a nine-year legal battle over the rights of gays and lesbians to marry the partner of their choice.

The court order came seven weeks after the U.S. Supreme Court dismissed an appeal by sponsors of Proposition 8, the initiative defining marriage as a union of a man and a woman, of a federal judge's ruling declaring the measure unconstitutional.

The first weddings took place June 28, after Gov. Jerry Brown ordered all 58 county clerks to issue marriage licenses to same-sex couples. But because the nation's high court did not rule on Prop. 8's constitutionality, sponsors of the 2008 measure urged the California court to step in and declare that only the two same-sex couples who sued to overturn the law should be allowed to marry.

State officials replied that the federal court ruling was binding statewide, and the state's high court went along -- in a July 15 order refusing to halt the weddings, and in Wednesday's final order dismissing the case.

'Gone for good'

With no more legal actions pending, the issue appears settled, with California joining 12 other states and the District of Columbia -- with a total of 30 percent of the nation's population -- recognizing same-sex marriage. Another U.S. Supreme Court ruling entitles the couples to the same federal benefits as opposite-sex spouses.

"Gay and lesbian couples will continue to marry throughout California, and families will continue to be strengthened. Prop. 8 is gone for good," said Adam Umhoefer, executive director of the American Foundation for Equal Rights. The group represented the four now-married plaintiffs, Kris Perry and Sandy Stier of Berkeley, and Paul Katami and Jeff Zarrillo of Burbank.

San Francisco City Attorney Dennis Herrera, who represented the city as a co-plaintiff in the suit challenging the ballot measure, was more cautious.

"By now, I suppose we know better than to predict that Prop. 8 proponents will actually give up their fight," Herrera said in a statement. But he called any possible remaining legal options "absurd."

Jeopardizing initiatives

Prop. 8's backers issued statements that made no mention of plans for further lawsuits. Instead, they said state officials and the courts had failed to do their jobs -- Brown and Attorney General Kamala Harris by refusing to defend the voter-approved measure, the U.S. Supreme Court by ruling that an initiative's private sponsors lack legal standing to represent the state and its voters, and the California court by declining to intervene.

"The California Supreme Court's choice not to address the merits of our case, like the U.S. Supreme Court's choice to avoid the merits, leaves grave doubts about the future of the initiative process in our state," said Andy Pugno, lawyer for Protect Marriage, the group that sponsored the initiative.

"When politicians disregard the law, and the courts refuse to get involved, what are we left with?"

Co-counsel Austin Nimocks of the Alliance Defending Freedom said the court action "does not end the debate about marriage in California."

"Though the current California officials are unwilling to enforce the state Constitution," he said, "we remain hopeful that one day California will elect officials who will."

Twists and turns

The case has taken a winding path since February 2004, when Mayor Gavin Newsom ordered San Francisco's city clerk to ignore state law against same-sex marriage and issue licenses to gay and lesbian couples.

The state Supreme Court invalidated the 4,000 marriages in San Francisco, but set in motion a challenge to the law. That in turn led to the court's May 2008 ruling that the marriage ban violated the state's constitutional guarantee of equality.

The voters overturned that ruling less than six months later by passing Prop. 8 as a constitutional amendment, prompting a renewed lawsuit in federal court.

Then-Chief U.S. District Judge Vaughn Walker ruled in August 2010 that Prop. 8 discriminated on the basis of both sexual orientation and gender and did nothing to strengthen heterosexual marriage, as its backers maintained. His ruling was suspended during lengthy appeals but took effect after the nation's high court ruled 5-4 in June that Protect Marriage lacked standing to appeal the decision.

Sponsors' arguments

The only remaining question was the scope of Walker's ruling. The suit by the two couples was not filed as a class action, but Walker, after finding Prop. 8 unconstitutional, banned state officials and those under their control from enforcing it.

In arguments to the state's high court, the measure's sponsors said Brown lacked authority over the county clerks who issue marriage licenses, and that Walker's ruling granted marriage rights only to the two plaintiff couples.

"Executive officials have attacked, failed to enforce and undermined state laws affirming traditional marriage," lawyers for Protect Marriage told the court.

They were briefly joined by San Diego County's clerk, Ernest Dronenburg, who filed a separate suit arguing that he was still bound to follow Prop. 8 but could not do so because of threats of punitive action by Harris. Dronenburg dropped his suit after the court refused to halt the weddings.

In defense of Brown's order, state lawyers cited the 2004 ruling in the San Francisco case -- in which the California court declared that the state, and not each individual county, determines who is eligible for a marriage license.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com

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(c)2013 the San Francisco Chronicle

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