Same-sex case weighed on chief justice

SAN FRANCISCO —  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.

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