Lifelong Republican Finds Himself Unlikely Hero of Gay Rights Activists
But as a crowd gathered outside the state Supreme Court's headquarters last Thursday morning, anxiously awaiting a ruling on the fate of same-sex marriage, George had already decided that the time was ripe for his court to make the hard decision and rewrite California's civil rights landscape.
When the clock struck 10 a.m. and the Supreme Court released its decision, George knew his court had made history.
"I certainly couldn't help but think that," George said in an interview this week in his office, cluttered with stacks of papers on desks and the conference table where the seven justices meet every Wednesday.
The 68-year-old George penned the 121-page ruling striking down California's ban on same-sex marriage, opening a new chapter in this era's most wrenching civil rights battle. The 4-3 decision, which George calls the toughest of his career, was announced as the chief justice was in his office, hosting a television crew from New York filming a documentary on the death penalty.
Now the ruling will define his legacy as chief justice. Already one of the most powerful judicial figures in California's recent history, George shrugged off the possibility of a political backlash by finding the state's gay marriage ban unconstitutional.
He assigned the task of writing the majority opinion to himself as he typically does in contentious cases. He would take the heat. He dismisses the suggestion he thwarted the will of the voters. "Basically, it comes down to the question of when is a judge shirking his or her responsibility by not acting," George said.
Just days after issuing the decision, George appeared to know it by heart. As he discussed the outcome, he jumped from his chair to retrieve a dog-eared law book, yellow Post-its jutting from the pages. He flipped to Perez v. Sharp, the equally historic California Supreme Court ruling outlawing a ban on interracial marriage in 1948.
Grounded in constitution
George relied heavily on the Perez decision in reaching the conclusion that same-sex couples must be treated the same as heterosexual couples. He insists California's constitution dictated the outcome, not life experiences.
But he acknowledged his experiences on social issues flavored his judicial thinking, recalling a trip with his European immigrant parents through the segregated South in the 1950s. There, he was first exposed to "whites only" bathrooms and drinking fountains.
He does not believe it will take as long for the country to follow California's lead on gay marriage as it did with interracial marriage, which was not endorsed by the U.S. Supreme Court until 1967.
"I think some of it is a generational phenomenon," George said of the social divide over same-sex marriage. "I don't think it will take 19 years this time."
George would not discuss specifics of the court's deliberations and obvious division in the gay marriage case, particularly since more legal battles are likely to follow. But it was "time," he said, for the court to tackle the issue head-on, splitting from colleagues - and other courts across the country - who believe it is up to the voters or Legislature to legalize gay marriage, not judges.
The legal world is abuzz over the decision's reach - the first to protect gays with the same civil rights laws that apply to race, religion or gender.
"George saw the historical moment and seized it," said Boalt Hall School of Law Professor Stephen Barnett, an expert on the court who at times has criticized George. "The decision took a great deal of courage and leadership."
Former California Supreme Court Justice Joseph Grodin, one of three justices ousted by voters in 1986 in an unprecedented backlash over the death penalty, called George's ruling "one of the best crafted opinions I've seen in a long time."
George on the surface is an unlikely hero for the gay rights movement. A lifelong Republican, his judicial career has been a string of appointments from Republican governors stretching from Ronald Reagan to Pete Wilson. A former prosecutor and Los Angeles trial judge, George has certainly always been in the spotlight - he presided over the infamous Hillside Strangler murder trial in the early 1980s.
But there have been signs all along that George is willing to go out on a judicial limb. Not long after taking over as chief justice in 1996, George triggered reconsideration of a hotly contested ruling that had upheld a California law requiring minors to get parental consent before having an abortion. By a 4-3 decision, written by George, the court reversed that decision and struck down the law.
As a result, angry social conservatives moved to oppose George's election in 1998, forcing him to raise more than $1 million to campaign. He won handily, as Supreme Court justices run unopposed and keep their jobs with more than half the vote. But that 12-year term is up in 2010.
George, who has rubbed shoulders with governors and legislators in Sacramento more actively than any chief justice in memory, seems unconcerned about another political campaign if gay marriage foes take him on. And he said he has no plans to retire from the court.
George, in fact, never slows down. A former marathoner who still runs regularly, George has been known to get by on a few hours of sleep and travels the world when he can with his wife, Barbara. He crisscrosses the state, pushing for new courthouses and more money for the judicial system when he's not working on opinions.
But whatever George had done before on the Supreme Court and through his 30-year legal career, it all changed last Thursday. And he realizes deciding the most divisive social issues comes with the territory.
"The political repercussions of who I am going to please or who I am going to displease is not something I think about," he said. "I just put it out of my mind."
Contact Howard Mintz at email@example.com or (408) 286-0236.
© 2008 The San Jose Mercury News