CA Marriage Debate Not Completely Settled

August 8, 2008

Over four years ago, the mayor of San Francisco directed the city to begin issuing marriage licenses to same-sex couples. A month after these initial licenses were issued, the California Supreme Court issued an injunction prohibiting the city from issuing further licenses. One of the first couples married by Mayor Gavin Newsome was longtime lesbian activists Del Martin and Phyllis Lyon, who have been a couple for over 50 years.

Sadly, six months later, the California Supreme Court invalidated Martin and Lyon's license, along with that of all of the other same-sex couples that obtained marriage licenses prior to the injunction. For Martin and Lyon, and for the 4,036 other same-sex couples, it was a bittersweet moment in an often long-lasting committed relationship. However, Mayor Newsome's act of civil disobedience was the catalyst for the recent California Supreme Court decision that overturned that state's ban on same-sex marriage.

As part of its May 15, 2008 decision, the Court found that sexual orientation, like race, was a suspect class, a legal term that means that members of the class are most likely subject to to discrimination. Thus, laws and regulations enacted by the State are subjected to a strict scrutiny analysis to determine if they are constitutional. This constitutional classification almost invariably means that laws restricting rights of the suspect class are found to be unconstitutional unless the court finds that a three-part test is satisfied.

The three prongs of this test are:

1. There must be a compelling governmental interest, such as national security;
2. The law or regulation must be narrowly tailored to carry out that interest; and
3. The law or regulation must be the least restrictive means of carrying out that interest.

All three prongs of this test must be satisfied, otherwise the law or regulation will be found unconstitutional. Thus, all California laws and regulations that specifically target gays and lesbians (such as adoption restrictions), or that have a disproportionate effect on gays and lesbians (such as marriage laws), are subject to strict scrutiny by the courts of that state.

Unfortunately, the New Jersey Supreme Court has not found that sexual orientation is a suspect class. Nor has the United States Supreme Court, which has only recognized race, national origin, religion, poverty and citizenship status as suspect classes. In fact the United States courts have declined to find that sexual orientation is a quasi-suspect class, such as gender or legitimacy, a finding that would subject laws to an intermediate scrutiny test. Nor has any other state found that sexual orientation is a suspect or quasi-suspect class.

Without question, the California Supreme Court decision was a tremendous win for the over-92,000 same-sex couples living in that state. In addition to its extraordinary finding that sexual orientation is a suspect class, the Court found that the California Domestic Partnership Act, which is effectively equivalent to New Jersey's civil union laws, was no substitute for equal marriage rights and that tradition was no more a justification for discrimination against same-sex couples than it was for prohibitions against interracial marriage, which the California courts struck down in 1948.

The California decision was also a tremendous win for gay and lesbian couples throughout the United States in that, unlike Massachusetts at the time, California had no prohibition on out-of-state couples marrying in that state. Subsequently, the Massachusetts Legislature repealed its 1913 law preventing non-resident couples from marrying there. Thus, gay and lesbian couples from most other states may now travel to California, Massachusetts and Canada to marry. However, such couples should not expect their marriage to be recognized as such in any states except California, Massachusetts and New York.

New Jersey couples that are legally married in any of the locations where they can now do so are currently recognized as a civil union in this state. This recognition arises from an opinion issued in February 2007 by then-Attorney General Stuart Rabner. I have recently filed a case in Mercer County that challenges this opinion, seeking to have a Canadian marriage recognized as a marriage in New Jersey.

Marriage equality in California still rests on shaky grounds. On June 2, 2008, a little over two weeks after the marriage decision, the California Attorney General announced that a citizen-sponsored initiative that would amend the California Constitution to prohibit same-sex marriage had qualified for the November 2008 ballot.

Immediately after that announcement, on May 22, opponents of marriage equality asked the California Supreme Court to issue a stay of its marriage decision, which was slated to go into effect at 5:00 pm on June 16, 2008. The request for the stay was based on the argument that the status of same-sex marriage licenses issued before the November 2008 election would be uncertain until after the outcome of the ballot initiative. The opponents sought to prevent any marriages from taking place in California. On June 4, 2008, the Supreme Court denied the request for the stay, and the State began issuing marriage licenses to same-sex couples at 5:01 pm on June 16, 2008. One of the first couples married was Del Martin and Phyllis Lyon.

The effect of Proposition 8, if it is adopted, is now subject to great debate. The proposed amendment provides that only marriage between a man and a woman is valid, or recognized in California. Assuming it passes (and current polls show that it is not a sure thing), the initiative presents several important questions. First, will the amendment invalidate those marriages that have taken place prior to the amendment? Most legal analysts believe it will not. On August 5, 2008, California Attorney General Jerry Brown issued an opinion that all marriage licenses issued prior to the adoption of the amendment (assuming it passed) would remain valid marriages. The Attorney General's opinion is important since he represents the State in any suits filed over the effect of Proposition 8.

Second, is the initiative itself constitutional? Equality California filed a petition with the state Supreme Court to block the proposed amendment on the grounds that its impact on existing marriages was not made clear to those who signed the petition. The group has also argued that the initiative is also unconstitutional because it alters a Constitutional right that has been found by the Court, thereby subverting the Court's quintessential power and role of protecting minorities.

The petition argues that Proposition 8 creates an exception in the California Constitution, which limits the recent protection for same-sex couples and the right to marry. Proposition 8, they argue, has such a fundamental effect on an existing right that it is a revision and not an amendment. Under California law, the constitution can only be revised by a super-majority vote of both the Senate and Assembly or by the vote of a validly-convened constitutional convention, the petitioners argued, followed by a voter referendum. Thus, they argued, Proposition 8 was unconstitutional and should be removed from the ballot.

On July 16, 2008, the California Supreme Court denied the petition. The Court's denial of the petition doesn't mean that this issue is decided. The Court did not elaborate on the reasons for its denial and it may well be that it simply intends to wait until after the November election before revisiting this issue. After all, if the amendment doesn't pass, then the Court will not need to issue a ruling.

So the future of thousands of married same-sex couples, including Del Martin and Phyllis Lyon, rests in the hands of the California electorate and, ultimately, the California courts. We can only hope that the people and the Court continue to do the right thing.

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