California chief
justice says same-sex marriage
ruling was one of his
toughest
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Paul Sakuma / Associated Press
In this March 4, 2008 file photo, California Supreme
Court Chief Justice Ronald M. George listens to arguments in San
Francisco. |
Ronald M. George, a
moderate Republican who voted
with the majority,
likens the case to civil rights battles.
By Maura Dolan,
latimes.com from the Web, May 19, 2008
SAN FRANCISCO, May 18 — In the
days leading up to the California Supreme Court's historic same-sex marriage
ruling Thursday, the decision "weighed most heavily" on Chief Justice Ronald M.
George -- more so, he said, than any previous case in his nearly 17 years on the
court.
The court was poised 4 to 3 not only to legalize same-sex marriage but also to
extend to sexual orientation the same broad protections against bias previously
saved for race, gender and religion. The decision went further than any
other state high court's and would stun legal scholars, who have long
characterized George and his court as cautious and middle of the road.
But as he read the legal arguments, the 68-year-old moderate Republican was
drawn by memory to a long ago trip he made with his European immigrant parents
through the American South. There, the signs warning "No Negro" or "No
colored" left "quite an indelible impression on me," he recalled in a
wide-ranging interview Friday.
"I think," he concluded, "there are times when doing the right thing means not
playing it safe."
Yet he described his thinking on the constitutional status of state marriage
laws as more of an evolution than an epiphany, the result of his reading and
long discussions with staff lawyers.
As he sometimes does with the most incendiary cases, George assigned the
majority opinion to himself. He wrote and rewrote, poring over draft after
draft. Each word change had to be approved by the other three justices
joining him in the majority. Even the likely dissenters had to be told in
"pink slips" of every word change.
On Wednesday, the long-awaited ruling was finally ready.
Court Clerk Fritz Ohlrich locked up stacks of the fat, stapled court opinions in
his office to protect against leaks, and George's staff asked that security be
beefed up. A fellow justice told George she would be at her desk in the
morning because she wanted "to be part of history."
On Thursday, George was in his chambers, being interviewed for a documentary on
death penalty administration. He said he wished he had canceled the
interview.
He was on camera when he heard "a big roar" from the crowd outside.
George, who grew up in Los Angeles, said he counts gays among his friends.
Four years ago, he peered out his chambers' windows across from San Francisco
City Hall to watch gay couples lining up to marry. He saw the showers of
rice, the popping of champagne corks, the euphoria of the couples.
He later joined four other justices in nullifying the marriage licenses, which
the court deemed to have been granted illegally by San Francisco. The
court refused to take up the constitutional questions of same-sex marriage then,
insisting the cases work their way up through the courts.
A trial judge ruled in favor of same-sex marriage. A court of appeal
overturned that ruling. And finally, the case was on George's desk.
'Very fatalistic'
George said he had voted to void the marriage licenses because he did not think
they should be "in limbo" while the courts tackled the constitutional issues.
Once he took up the constitutional challenge, he said he did not permit any
consideration of political fallout.
"I am very fatalistic about these things," he said. "If you worry, always
looking over your shoulders, then maybe it's time to hang up your robe."
Court rules bar George from discussing the ruling until it takes effect in 30
days or more.
During the two-hour interview with The Times, he refused to disclose anything
about the court's internal deliberations and responded to a number of questions
by reading aloud from the decision. His elegant and comfortable chambers
had neat stacks of papers piled on the floor, all over his desk and on a long
conference table.
Asked whether he thought most Californians would accept the marriage ruling,
George said flatly: "I really don't know."
He indicated he saw the fight for same-sex marriage as a civil rights case akin
to the legal battle that ended laws banning interracial marriage. He noted
that the California Supreme Court moved ahead of public sentiment 60 years ago
when it became the first in the country to strike down the anti-miscegenation
laws.
California's decision, in a case called Perez vs. Sharp, preceded the
U.S. Supreme Court's action on the issue by 19 years. Even after that
ruling, Californians passed an initiative that would permit racial
discrimination in housing. The state high court again responded by
overturning the law, George said.
Rather than ignoring voters, "what you are doing is applying the Constitution,
the ultimate expression of the people's will," George said.
By the time of the same-sex marriage oral argument in March, three other
justices had tentatively decided to join George's opinion. They are
Justices Joyce L. Kennard, Kathryn Mickle Werdegar and (sole Democrat) Carlos R.
Moreno, the court's more liberal wing.
George said the oral argument marked the "highest point" for the court, and he
was "so glad" the session was televised. "I was incredibly proud of how we
acquitted ourselves in such a difficult and well publicized case," he said.
Relations among the justices remained warm and cordial. George said he was even
pleased with the dissents, which contended that a decision on same-sex marriage
should be made by the people, not the court.
Some judges in other states that had considered same-sex marriage had written in
ways that were "homophobic" and demeaning to lesbians and gays, statements "that
you don't find" in California's dissenting opinions, George said. They
were signed by Justices Marvin Baxter, Ming Chin and Carol A. Corrigan.
'A real conundrum'
"When is it that a court should act?" George mused. "When is it that a
court is shirking its responsibility by not acting, and when is a court
overreaching? That's a real conundrum. I have respect for people
coming out on different sides of this issue."
George's reputation for caution is based on the court's tendency, under him, to
decide cases narrowly, refusing to reach issues not necessary to the case at
hand. Advocates thrust the central constitutional question of equality for
gay people on the court; there was no way to avoid it.
George also had taken risks before. Shortly after Gov. Pete Wilson
elevated him to chief justice in 1996, George obtained enough votes to change
the court's stance on parental consent for abortion. He wrote the ruling
that overturned the state's parental consent law, sparking a campaign by
anti-abortion groups to oust him.
After a justice's appointment, voters are asked to retain him or her at the next
gubernatorial election. At the time of the parental consent decision, some
judges were just squeaking by their retention votes.
Eric George, 39, a Los Angeles lawyer and the chief's eldest son, decided to
mount a full campaign to protect his father's seat. After George was
reconfirmed by a healthy margin, Eric George said he gave his father some
playful advice.
"Could you wait at least 10 years for another controversial decision like this?"
he asked.
George said the only other decision that anguished him as much as same-sex
marriage occurred at the beginning of his career, when as a Los Angeles County
Superior Court judge he insisted that a serial killer known as the "Hillside
Strangler" be prosecuted over the objections of the Los Angeles district
attorney.
The district attorney's office said there wasn't enough evidence to win a
conviction, so George asked the attorney general's office to prosecute it.
The trial, expected to last a year, took two years. George remembers
warning his wife, Barbara, "This may become known as George's folly." The
jury eventually convicted on nine of 10 murder counts.
Santa Clara University law professor Gerald Uelmen, who has closely followed
George's court tenure, said "the biggest surprise" of the marriage ruling was
that George favored it. Uelmen said George must have done "some real soul
searching."
The "very carefully written opinion" reflects that George "is very sensitive to
how this will be perceived," Uelmen said. "He realized that this more than
any other thing he does as chief justice will define his legacy. He'll
certainly take a good deal of political heat over this."
Mathew Staver, founder of Liberty Counsel, said he had long expected George to
vote against same-sex marriage.
"His change from where I thought he would be is baffling," said Staver, whose
group promotes traditional marriage.
UCLA law professor Brad Sears said, "Definitely what created the majority was
George's support."
A proposed initiative that would amend the Constitution to again ban same-sex
marriage is headed for the November ballot, but even if it passes, gays in
California will enjoy heightened protections from discrimination as a result of
Thursday's ruling. George will appear on the state ballot for retention in
two years.
He went home Thursday night drained and discovered a card left by friends at his
San Francisco apartment. It was a Japanese watercolor of a branch with red
berries. His friends had written "Congratulations!" inside.
"Why not go out on a limb?" the greeting on the card read.
maura.dolan@latimes.com
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