While we sit around twiddling our thumbs and waiting for the California Supreme Court to announce its ruling in the same-sex marriage cases, I thought it might be useful to recap some of the key features of the litigation.
The story here begins in the winter of 2004, when the city of San Francisco began issuing marriage licenses to same-sex couples. In the month before the California Supreme Court ordered a halt to the proceedings, some 4,000 same-sex couples were married. The California Supreme Court nullified all those licenses in the summer of 2004, ruling that the mayor and city of San Francisco lacked the authority to override a California law defining marriage as the union of one man and one woman. The high court, however, expressly refused to decide whether the "hetero only" law was constitutional, saying that separate lawsuits could be filed to answer that question. And that's what happened. A whole heap of litigation to answer this question ensued (about which more after the jump).
In 2005, a San Francisco Superior Court judge declared that California's ban on same-sex marriage was unconstitutional. The law, said the judge, violated the state constitutional right to "join in marriage with the person of one's choice." (This right was first established by the California Supreme Court in 1948, when it became the first high court in the nation to strike down a ban on interracial marriage.) The judge also found that California's ban constituted illegal sex discrimination because it was based on the gender of one's partner.
But a state appeals court overturned the lower court decision in 2006. In a 2-1 ruling, the appeals court essentially said that California's comprehensive domestic partner law did a good enough job of protecting the rights of same-sex couples, and that California was entitled to preserve the historic definition of marriage as heterosexual.
The Key Questions before the California Supreme Court:
The various parties in the case have raised a wide range of legal questions and the high court may well choose to answer some questions and not others.
Here's how the California appellate court website poses the question:
Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?
The California Supreme Court is actually deciding six cases all at once, so it can be difficult to keep the players straight (so to speak).
Three of the cases are being brought on behalf of 23 same-sex couples who want to marry. A fourth case is being brought on behalf of the city of San Francisco. And believe it or not, two more cases are being brought by opponents of same-sex marriage, who think that the state of California won't do a good enough job of defending the same-sex marriage ban.
In addition to the actual parties to the cases, more than 40 individuals and organizations have submitted friend-of-the-court briefs.
The California Supreme Court is comprised of seven justices, six of whom are Republican-appointees. On the whole, it's got a pretty good record on LGBT rights cases. During the last five years, the court issued three decisions requiring equal treatment for same-sex parents in disputes over custody and child support and also outlawed business discrimination against domestic partners. That said, the court also upheld the Boy Scouts' right to exclude gay men from membership. Perhaps more significantly, it's a court that has rarely overturned laws.
The justices certainly seemed divided on the subject of same-sex marriage during oral arguments on March 4th. Three members of the court (Corrigan, Baxter, and Chin) asked a series of questions that appeared to indicate an inclination to uphold the ban. Two other members of the court (George and Kennard) asked questions that appeared to indicate a propensity to strike down the ban. While the questions justices ask in oral arguments don't always match up with their rulings, they're often a pretty good indicator.
The Ruling and its Implications
I don't have a crystal ball telling me how the court will rule, and anything I predict is going to be overshadowed by the court's actual decision in a few hours. A link to the full decision will be posted on Bilerico as soon as it's available, and I'll be back as soon as I've had a chance to read and digest the decision with an initial cut at its reasoning.
It doesn't take a crystal ball, however, to see some of the obvious implications of this case.
If the court upholds the same-sex marriage ban: We're more or less at the status quo ante. Domestic partnerships will still be available to same-sex couples in California. DPs in California are nearly identical to marriages in terms of their legal effect at the state level, although of course "domestic partnership" doesn't have the social connotations of "marriage." Anti-gay groups have collected more than one million signatures to put a constitutional amendment banning same-sex marriage on the ballot. If at least 694,354 of those signatures are found to be valid, the measure will be on the ballot this November. But a negative ruling by the state supreme court won't add any additional incentive for voters to approve the amendment. Nor will it change the legal or political stakes outside California. About the only thing a negative ruling will do (other than add yet one more insult to the injuries LGBT people carry around with them every day) will be to establish another negative legal precedent for marriage rights litigators to overcome. That's not a trivial concern. But it's a long term concern rather than a short term one.
If the court upholds the same-sex marriage ban: Do you like roller coasters? It's gonna feel kinda like that. As Sara Whitman pointed out, California doesn't have a law preventing out-of-state couples from heading to California to marry and then returning home. This will undoubtedly freak out legislators in states, like Indiana, that don't have a constitutional amendment banning same-sex marriage. Expect more--and more fervent--attempts to pass marriage bans. A win may also give more legs to the proposed ballot initiative in California. (If the ballot measure passes, it will wipe out any court win.) A win in California is also going to rock the presidential race. Both Obama and Clinton are on record as favoring the repeal of DOMA (entirely in Obama's base, partly in Clinton's). McCain, predictably, likes DOMA. Expect conservatives to trumpet the "threat" of marriage from California to bring out the social conservative vote. So take a couple of days to celebrate the vindication of our common humanity if we win, folks. And then get ready to roll up your sleeves. We're going to have a lot of work to do.