California Supreme Court Set to Consider Gay Marriage

The lawsuit, however, though groundbreaking, garnered hardly any attention at the time.

"We announced our lawsuit the same morning Gavin Newsom legalized gay marriage in San Francisco," Perry laughs. "We found out about what San Francisco was doing while we were giving our press conference. Our story got completely buried."

Paula Schoenwether

Never a bride . . . or a groom: Robin Tyler, right, and her partner, Diane Olson

Matthew Fleischer

Just not married: Troy Perry, center, with partner Phillip De Bliek and attorney Gloria Allred on the steps of the Beverly Hills Courthouse, Valentine's Day 2008

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More About

• Troy Perry
• Diane Olson
• Robin Tyler
• LGBT Issues
• Same-Sex Marriage

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In March 2004, after the California Supreme Court ordered the granting of gay marriage licenses in San Francisco halted and the annulment of the earlier marriages, eight San Francisco couples sued the state, and their case was consolidated with the suit Tyler and Perry had already filed.

Woo v. The State of California, as the case was called, was presided over by Judge Richard Kramer — a conservative Republican. In a shocking decision, on March 14, 2005, Judge Kramer, citing the 1948 case Perez v. Sharp, which struck down California's anti-miscegenation laws, ruled in favor of Tyler and Perry. The decision was immediately appealed, however, and a year later, the California Court of Appeals overturned the ruling in a 2-1 vote.

As the case heads to the California Supreme Court, neither side of the debate has any idea which way the judges will lean. Though the California Supreme Court is generally thought of as conservative, Judge Kramer's original ruling shows that even conservatives find the constitutional case for gay marriage compelling. Gloria Allred herself has no idea which way the decision will go.

"I know which way it should go," she laughs. "No matter what happens, we will win eventually. Like the civil rights struggle of the '60s, we've got history on our side. Gays and lesbians refuse to sit in the back of the bus when it comes to marriage or any other issue."

Now inside the Beverly HillsCourthouse, Tyler, Olson, Perry, De Bliek and a recently arrived Allred stand in the queue of excited Valentine's Day couples patiently waiting for the marriage clerk to return from her lunch break. At last, the light in the clerk's booth snaps on, and a resounding "Next in line" is heard throughout the waiting area. Leading the pack, Allred and her clients step to the window.

The moment of truth has arrived — but any lingering hopes of shortcutting history take about 30 seconds to deflate.

Smiling and sympathetic, but not sympathetic enough to break the law on the couples' behalf, the clerk hands each pair a form letter from Registrar-Recorder Dean Logan: "California state law permits the county clerk to issue a marriage license only to an unmarried male and an unmarried female. Changes to this law can only be approved by the State Legislature and the Governor."

The letter goes on to suggest that parties aggrieved by the current law should contact their state representative. But even though this is the county courthouse where the current battle in the state Supreme Court began, there is no mention of the ongoing lawsuit.

Neither couple takes up the issue, however. Each politely accepts the letter and walks away in turn. If there's any anger over the swiftness of the denial, it's cooled by the recitation of a collective mantra: "March 4."

Outside the courthouse minutes later, after the television media and most of the other couples have gone, Tyler, Olson, Perry and De Bliek linger, chatting in confident tones about the righteousness and inevitable triumph of their cause. None appears remotely discouraged by the day's temporary setback.

"Some people might call me radical," says Perry, of his pursuit of gay marriage, "but I don't find it radical to fight for my basic constitutional right to equal treatment under the law. I consider it the patriotic duty of a good American."

"Whatever the court decides, we've already won," insists Tyler. "Sixty percent of people under the age of 24 think same-gender marriage should be legal. Our victory isn't an if, it's a when."

Also read "Key Moments in the Struggle for Gay Marriage in the U.S." by Matthew Fleischer