The Evolving Same-Sex Marriage Struggle

Events are moving quickly in California.  After the state Supreme Court's historic decision on May 15 in the consolidated Marriage Cases, one of respondent parties, Proposition 22 Legal Defense & Education Fund (the sponsor of the 2000 ballot initiative that the court declared unconstitutional in that decision) moved for rehearing on the issue of remedy, including in its motion the argument that the court should stay its decision until after the November 4 general election, in light of the possibility that an initiative to amend the state constitution to ban same-sex marriages might be on the ballot and might pass.  The court did not respond immediately to the motion, which would be automatically denied if the court does not respond to it by June 16, the date when the marriage decision would automatically go into effect.

Meanwhile, local officials around the state who administer the marriage laws were scrambling to figure out when and how to comply with the court's ruling, a determination complicated by the pending motion and possibility of a stay.  News reports initially indicated that the county clerk in San Diego was ready to start issuing licenses on June 14, a Saturday, but then the state sent an email out to all the county clerks advising them to wait until Tuesday, June 17, in light of the possibility the Supreme Court might stay its decision.  (The court also has the option of announcing a temporary stay while it ponders the motion beyond that date.)  Certainly it seemed likely that in default of any action by the court, same-sex couples could begin getting licenses on June 17.  Since California has no residency requirement for marriage licenses, it was possible that out-of-state couples eager to marry would begin making plans to travel to California.

Political developments were accumulating as well.  While initial polling seemed to confirm the predecisional situation, with a slight majority of the public in California remaining opposed to same-sex marriage, a Field Poll issued toward the end of the month suggested a more fluid situation, showing a bar majority now supporting same-sex marriage.  However, this result was within the published margin of error for the poll, which indicated a high probability that the slight majority against same-sex marriages shown by other polls still existed.  (A friend from California confirmed for me that the Field Poll has a reputation for a slight bias in the Democratic direction, which might explain its variance from prior polls which is, in any event, slight.)  What this means for a November 4 ballot is unclear, since much campaigning by both sides would take place between now and then, major candidates for office would weigh in, and the huge turnouts generated by a hot presidential and congressional campaign would have indeterminate effects.  (Recall 1980, when the Briggs Initiative to ban gay public schoolteachers in the state was predicted likely to pass, but ultimately went down to defeat after popular Republican ex-governor and presidential candidate Ronald Reagan came out in opposition shortly before the election...)

Gloria Allred, the Southern California lawyer who represents lesbian comedian Robin Tyler, lead plaintiff in one of the individual marriage cases that was consolidated into the over In re the Marriage Cases ruling, filed a response to the Prop 22 motion, pointing out that it relied on a chain of speculation - the the amendment initiative would be found qualified for the ballot, that it would pass, that it would survive legal challenge - and noted that what must be weighed against this is the constitutional right declared by the court.  This is quite different from the situation faced by the court in 2004 when it ruled in Lockyer that allowing the San Francisco same-sex marriages of February 2004 to stand pending an ultimate resolution of the underlying constitutional claim would lead to confusion and reliance problems.  In that case, the court had not yet found a constitutional right to be at stake, and it was uncertain how long the question would remain unresolved.  In this case, by contrast, a constitutional right of fundamental importance has been identified, and the question of the constitutional amendment, if it is put on the ballot, may be resolved in a few months.

Not generally known at the time of the California court's May 15 decision, just a day earlier New York Governor David Paterson, reacting to a NY Appellate Division ruling holding that under established NY marriage recognition principles the state would recognize marriages of same-sex couples contracted elsewhere, had instructed state agencies to conform their practices and policies to the decision.  Although the named defendant in the case, Monroe County, whose community college had refused to recognize the Canadian marriage of a lesbian employee to her same-sex partner, had vowed to appeal, the state had not joined in the appeal, and the NY Court of Appeals had dismissed the appeal as premature, because the trial court on remand had not yet entered a final remedial order in the case. Thus, the stage was set for same-sex couples from New York to take advantage of the new California ruling and obtain an "American" same-sex marriage if they did not prefer the less expensive alternative of scooting across the northern border into Canada.  For now, the Canadian route looks more secure, due to the possibility that the California marriage amendment will be on the ballot, pass, and survive judicial review.

One California legal scholar was circulating a memo calling on the state to find the initiative inappropriate for the ballot on the ground that it sought to "revise" the constitution, a goal prohibited by the California initiative process, but a similar argument was recently rejected by an Oregon appeals court evaluating the constitutionality of the marriage amendment passed by voters there a few years ago, and it was uncertain how such an argument would play with the California courts.  Certainly, any attempt by state officials to block the initiative on that basis would be met with a quick lawsuit by the sponsors of the initiative, with Alliance Defense Fund (which represents Prop 22 in the marriage case), strenuously seeking to make sure the initiative appears on the ballot. 

And what else is pending on the marriage front?  Oh, yes, the Connecticut Supreme Court.  New Yorkers thinking about traveling to California or Canada might want to wait to see what the neighboring state of Connecticut ultimately does about marriage.  The issue faced by the Connecticut court is essentially the same that was just decided in California: whether a state's adoption of a "separate but equal" status for same-sex couples meets the constitutional requirements of due process and equal protection.  The case was argued more than a year ago and Connecticut, unlike California, does not place a tight constitutional time limit on its highest court for deciding cases.  The Connecticut court was widely seen as stalling to see what California would do.  Judges like to have precedents rather than going out on a limb to decide questions of first impression.  Now there is a persuasive precedent from California, and perhaps the Connecticut court will conclude its deliberations and issue a decision. So New Yorkers may be able to marry in New Haven instead of Toronto or San Francisco.

Other developments on the horizon: New Jersey activists, spurred on by the situations in New York and California, are liable to be busy on several fronts: urging state officials to revises their view that out-of-state same-sex marriages should be treated as civil unions in New Jersey rather than marriages, which is out-of-step with neighboring New York, and urging the legislature and governor to agree after the elections to address the remaining inequity by opening up equal marriage rights for same-sex couples.  Another jurisdiction now out of step that may see developments is Rhode Island, the only New England state that provides no legal status for same-sex couples.  (Maine has limited domestic partnership; Massachusetts has marriage; Vermont, Connecticut and New Hampshire have civil unions.)  Perhaps the Rhode Island legislature, which has been sitting on a marriage bill, will take some action...

Busy times for same-sex marriage advocates, and hopeful times.