The California Court of Appeal has rejected the San Francisco city attorney’s effort to recognize a right to marriage for same-sex couples. “Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage,” wrote Justice William McGuiness in In re Marriage Cases [.pdf].
Justice Joanne Parrilli concurred separately, expressing sympathy with the city and gay rights activists’ cause but concluding that the time is not ripe for courts to intervene. “To the degree that any committed relationship provides love and security, encourages fidelity, and creates a supportive environment for children it is entitled to respect,” Parrilli wrote. “Whether it must be called the same, or supported by the state as equal to the traditional model, only time and patient attention to the models at issue will tell.”
Justice J. Anthony Kline has issued a fierce dissent, comparing the majority opinion to the 1986 U.S. Supreme Court ruling Bowers v. Hardwick, 478 U.S. 186, which upheld the criminalization of homosexual conduct and was later overruled. Gay rights supporters “do not seek the establishment of a ‘new’ constitutional right to serve their special interests, but rather the application of an established right to marry a person of one’s choice; a right available to all that government cannot significantly restrict in the absence of a compelling need.”
More on this opinion to come soon.
— Scott Graham
[This is an updated version of an earlier post.]