Couples might exchange vows by June 16, but a ban amendment looms

by Anthony Glassman

San Francisco--The California Supreme Court?s May 15 decision in favor of same-sex marriage continues to reverberate across the nation, affecting both the upcoming presidential election and the attempts of anti-gay groups in the state to pass a constitutional amendment barring such unions.

Chief Justice Ronald M. George, leading a four-to-three majority, wrote an opinion that took pains to point out that it was about the right to marry, not a right to ?same-sex marriage.?

George noted that the difference between the two was not mere semantics, and quoted extensively from another decision issued exactly 60 years ago by the same court, which struck down California?s ban on interracial marriage.

That 1948 decision established the right to marry a person of one?s choosing, regardless of their race. It was the first in the nation to do so, 19 years before the U.S. Supreme Court followed suit, and at a time when 60% of voters opposed it.

George also noted that, unlike other states whose supreme courts have discussed the rights and responsibilities of marriage in rulings that allowed civil unions, California already extends all those rights in its broad domestic partner law. Thus, this opinion was about marriage only, including the word itself.

Last week?s ruling ends a four-year battle sparked by the granting of marriage licenses in San Francisco. Around 4,000 couples were married there before the courts halted the nuptials, eventually invalidating the marriages.

The case consolidated six different suits arguing for marriage equality into a single one that attracted a record number of amicus curiae briefs, statements and analyses by interested groups submitted to the court. Most of those were in favor of the right to marriage.

One of the original six cases was filed by officials of the city of San Francisco, including Mayor Gavin Newsom, arguing for their right to join same-sex couples.

Others were filed by couples whose marriages were invalidated by the courts. The decision does not reinstate their invalidated earlier marriages, so they will have to be wed again.

All three dissenting justices believed that the issue should be left to the legislature or the voters. Justice Carol A. Corrigan?s dissenting opinion, however, explicitly stated that she believed it was unconstitutional to bar same-sex couples from the right to marriage, but that it was not the court?s place to decide.

The California legislature has passed bills in 2005 and last year extending full marriage to gay and lesbian couples. Both measures were vetoed by Republican Gov. Arnold Schwarzenegger, who said that he believed it was an issue for the courts or the voters.

Now that the court ruled in favor of marriage, Schwarzenegger said he respected the ruling and restated his opposition to a proposed constitutional amendment barring same-sex marriages.

Petitions were submitted this month to put the measure on the November ballot. If voters approve the amendment, it would void most of last week?s ruling.

Seven out of eight of the justices on the California Supreme Court were Republican appointees, and the court itself has been referred to as ?cautious,? which makes the ruling all the more remarkable.

Legal scholar Art Leonard of the New York University law school noted that an important aspect of the ruling is the court?s establishment of sexual orientation as a ?suspect class,? similar to race or sex, under the state?s constitution. That means that any law or policy that discriminates by sexual orientation--not just marriage--would have to pass the highest level of scrutiny to stand up in court.

In an analysis posted on his blog, Leonard noted, ?Moving to the equal protection point, George noted that it was a question of first impression for the California Supreme Court whether discrimination based on sexual orientation was ?suspect? and thus subject to the ?strict scrutiny? judicial review.?

?California already treats sex discrimination as suspect, but the court rejected the argument that this is a sex discrimination case,? he continued. ?In common with many other state courts, the court concluded that the statute did not discriminate between men and women, but rather between same-sex and different-sex couples, so this is a sexual orientation discrimination case.?

After going through the various arguments about what might establish a ?suspect class,? Leonard noted, ?The court concluded that ?an individual?s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual?s rights,? and, furthermore, ?that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution?s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.? ?

The justices established a 30-day period after which the ruling will take effect, so the first legal same-sex marriages in the state may happen as early as June 16.

Opponents of the decision are expected to ask the court to delay its enactment until after the November election.

While same-sex marriage has been used by the religious right as a rallying cry, opponents of equal marriage would face a public relations nightmare if weddings were already being performed. Supporters of same-sex marriage would undoubtedly run ads urging citizens to vote against tearing happily married couples apart.

After the marriage ruling was issued, the three presidential candidates all reiterated the same positions they have supported since the race began.

Hillary Clinton and Barack Obama both espoused the position that same-sex couples should enjoy equal rights--through civil unions. They also both supported the rights of states to extend full marriage rights to same-sex couples.

John McCain, the Republican candidate, ?supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona. John McCain doesn?t believe judges should be making these decisions.?

California will recognize marriages performed in jurisdictions where they are legal, like in Massachusetts, Canada, Spain, South Africa and the Netherlands. Unlike Massachusetts, the state does not have a residency requirement for marriage. It is expected that a flood of visitors will pour into the state for their nuptials, as they did to larger Canadian cities after that country legalized full marrage.

Couples who are in domestic partnerships, which offered all of the state benefits of marriage without the name, can get married without dissolving their domestic partnership. California law allows someone to be in a both domestic partnership and a marriage, as long as it?s with the same person.

Legal scholars also note that keeping the domestic partnership might be a good idea, since some other states recognize partnerships or civil unions, but not marriage.