Six of the seven California supreme court justices were appointed by Republican governors, who lauded their conservative credentials.
It’s this same judiciary that delivered the legal outcome dreaded by many members of their party: the legalization of same-sex marriage in California and the simultaneous elevation of sexual orientation to the highest class of protection -- making California the first state in the nation to adopt such a strict standard.
“The great triumph of the gay rights movement has been to transform American culture so that acceptance of gay people isn’t just confined to the latte-sipping, windsurfing Democrats,” says Andrew Koppelman, a professor of constitutional law at Northwestern University and the author of Same Sex, Different States. “The fact that you can get this result with a court full of Republican appointees is more of a triumph than if it had been a court full of Democrats.”
Clearly, some members of the GOP aren’t happy about it. The marriage ruling drove former Massachusetts governor Mitt Romney to decry that his values were under attack by “looney liberals,” apparently forgetting that Republicans were largely responsible for it.
Romney and other antigay forces fear that the May 15 decision will affect marriage equality rulings in other parts of the country. And they have reason to worry. According to a study published in December 2007 by the UC Davis Law Review, the California supreme court is the most influential state high court in the nation, with its rulings cited more often in other courts’ decisions than those of any other high court.
Case in point: Perez v. Sharp, the landmark interracial-marriage decision cited in the same-sex marriage ruling. State after state overturned interracial-marriage bans after the California supreme court was the first to do so in 1948.
The question remains how history will judge this California supreme court in 60 years. For now, the international spotlight searches for a better understanding of the names forever linked to marriage equality.
Chief Justice Ronald M. George
Appointed to the supreme court by Republican governor Pete Wilson in 1991
Author of the 4-3 majority decision
The son of a French father and Hungarian mother, Chief Justice George says that in recent months, while considering the marriage case, he couldn’t help but remember the NO NEGRO signs he saw at age 17 as he traveled through Virginia on his way to college at Princeton University.
After college he flirted with the idea of foreign service, even traveling to Africa, but opted to attend Stanford Law School, where he discovered an affinity for constitutional law. His star rose quickly. At age 28 he argued his first case before the U.S. Supreme Court. He went on to work in the California state attorney general’s office, where he successfully defeated an appeal by Robert Kennedy assassin Sirhan Sirhan.
He calls the marriage equality ruling one of his three most controversial decisions. As a superior court judge in 1981, George ordered Hillside Strangler defendant Angelo Buono to face murder charges despite a motion by the prosecutor to dismiss the case. Buono was eventually convicted of killing nine Los Angeles–area women.
He became a target of antiabortion activists after another controversial ruling in 1997—the year after he was elevated to chief justice of the state supreme court—when he was seen as the swing vote in a ruling that struck down a law requiring teen girls to obtain parental or judicial consent before terminating a pregnancy.
In the marriage equality ruling, George was once again viewed as the swing vote. “I think George was the biggest question mark,” says Brad Sears, executive director of the Charles R. Williams Institute on Sexual Orientation Law and Public Policy at the University of California, Los Angeles, School of Law. George understands why he’s an enigma on the bench. “I approach cases on their merits without regards to pressure or politics,” he says.
George, 68, says he has no gay family members but that he does have close friends who are gay. Asked if those friendships informed his thinking, George says, “It’s very hard to know. I try to approach everything objectively, but that’s part of my experience.”
Like Margaret H. Marshall, the chief justice of the Massachusetts supreme judicial court—who wrote her court’s majority opinion overturning her own state’s same-sex marriage ban in 2003—George was appointed by a Republican governor.
“This case indicates a sort of judicial coming-out for him,” says Stephen Barnett, an emeritus professor of law at the University of California, Berkeley. “I get the feeling that it was given a great deal of care by the chief justice.”
In fact, every word of the decision was run past the three other justices who joined the majority decision. The ruling “establishes many important rules of law,” including the designation of sexual orientation as a “suspect class” in California, meaning that any law that is found to discriminate on the basis of sexual orientation from this point will be constitutionally suspect, on a par with race and gender, a fact the chief justice believes will have “great significance nationally.”
“This opinion is by far the most carefully reasoned and carefully crafted of any opinion on the subject—indeed, any writings on the subject—including the writings of presumptively learned professors like myself,” says Joseph Grodin, a former California supreme court justice who teaches constitutional law at the University of California’s Hastings College of the Law.
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