commentary
Beyond the Briefs
Same-sex marriage in California may be inevitable
Published Thursday, 13-Mar-2008 in issue 1055
Last week, the California Supreme Court heard oral arguments in six cases challenging the constitutionality of state laws that prohibit same-sex couples from marrying. The court has 90 days from the hearing to issue its opinion, leaving us up to three months to speculate how it will decide.
The purpose of last week’s oral argument was for both sides to present their arguments and to answer questions from the justices. After oral argument, a justice may change his or her mind on the matter. But usually the justices already have made tentative, confidential decisions based upon the written briefs submitted to the court, and, consequently, the tenor of the questions they ask during oral argument indicates how a particular justice has voted or will vote on the issue at hand.
For example, some of the most intense questioning of attorneys supporting same-sex marriage came from Justice Carol Corrigan, who asked whether the court could declare Proposition 22, California’s prohibition against same-sex marriage, unconstitutional or whether that’s a matter best left to the electorate. Her questioning reflected the majority view of the lower appellate court, where two of three justices found that Proposition 22 prevented the court from overruling the law.
If the court finds that this is the case, the issue would be left as a legislative matter.
However it’s difficult to predict from last week’s hearing what the outcome will be.
Many legal experts predict that the court may declare Proposition 22 unconstitutional. That’s because, in a series of decisions, it has ruled on behalf of gay litigants, most notably in upholding second-parent adoption laws, as well as recognizing the rights of same-sex couples against discrimination by businesses.
However, the California Supreme Court consists of seven justices, and so same-sex marriage advocates need at least four votes to declare California law unconstitutional. Further, since six of the Supreme Court justices were appointed by Republican governors, the court is considered to be far more conservative than the Legislature.
In other words, any decision the California Supreme Court reaches will be very narrow, and it’s quite possible that, for the purposes of marriages performed in California, it could rule that only two persons of different gender can be married.
But there are other issues on the subject to decide: For example, will California recognize same-sex marriages performed in other states, such as Massachusetts? An appellate court in New York recently ruled that same-sex marriages performed in Massachusetts receive recognition in New York, even though New York’s high court ruled against same-sex marriage.
Cases in California involving couples from Massachusetts will certainly be making their way up the appellate ladder. Whatever decision our high court reaches in June will not foreclose that matter.
So, ostensibly, same-sex couples who marry in states where it is legal could claim that California must recognize their marriage. Our high court already recognizes some marriages performed in other states and countries that would be illegal if performed here. For example, it recognizes marriages between persons under the age of 16 performed in states that allow such.
And, in the future, even more questions may arise. While it may seem far-fetched now, it’s completely plausible that, one day, someone who applies for a marriage license in California could refuse on “privacy” grounds to reveal his/her “gender,” arguing that, just like race, one’s “gender identity” is a private matter and the state has no compelling interest to require disclosure. After all, there are individuals who present as “male,” yet they are biologically female and, aware that women suffer widespread forms of gender discrimination in the professions, business, and academia, prefer to stay that way.
But whatever the court’s decision is in June, most believe that same-sex marriage is inevitable in California. That’s because not only do considerations such as these almost make the same-sex marriage question now before the Supreme Court’s seem passé, but most expect California will elect a pro-choice/pro-same-sex-marriage governor. Certainly no Democrat can win the Democratic nomination for governor without agreeing to sign the same-sex marriage legislation that Arnold Schwarzenegger has twice vetoed.
Robert DeKoven is a professor at California Western School of Law.
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