commentary
Will same-sex marriage be legal before year’s end?
Published Thursday, 04-Jan-2007 in issue 993
Beyond the Briefs
by Robert DeKoven
It’s supposed to happen this year. Yes, same-sex marriage will be legal in California before the year’s end. I predicted here two years ago that the California Supreme Court would rule that California’s equal protection laws require that same-sex marriage be treated the same as heterosexual marriage.
I had assumed that the California Court of Appeal would have ruled this way several months ago and that the California Supreme Court would have simply elected not to change that ruling. But I was off by one vote, so the matter now goes to the next court.
Thanks to the Legislative LGBT Caucus, the Legislature has passed just about every conceivable law to equal same-sex domestic partnership with marriage. The governor’s veto of the same-sex marriage bill last year was unfortunate, but politically it was predictable. And, as most of us admit, had he signed the bill, the right wing would have mounted a serious campaign to defeat it at the polls.
After the veto, the governor signed several bills: one that bans marital status bias, another that allows people who have undergone gender reassignment surgery to marry and several others that equate domestic partnerships with “marital” units for tax and state benefits.
I’m predicting that the California Supreme Court will rule by at least 6-1 in support of same-sex marriage. The right wing, fresh from a complete thumping in California’s last election, will have a tough time trying to defeat this at the polls.
This year will also mark a showdown of sorts with our efforts to bar discrimination against us.
Statewide, new Attorney General Jerry Brown has said that he won’t be shy about enforcing laws protecting gays and lesbians. And that’s important because state Senator Christine Kehoe’s bill barring businesses from doing business with California unless they offer domestic partnership benefits took full effect on Jan. 1.
Brown will have to, for example, inform the Los Angeles Coliseum, which is owned by the state, that it can no longer make contracts (through USC) to play Notre Dame or any other NCAA school that does not offer DP benefits.
Locally, City Attorney Mike Aguirre will inform SDSU and the Boy Scouts that they are in breach of the City Charter, which prohibits lessees from discriminating against gays and lesbians. Aguirre told voters when he ran for office that the “courts have spoken” and that he would carry out the law.
The Boy Scouts last prayer was a legal challenge based upon their “expressive associational right to discriminate.” But the California Supreme Court unanimously rejected that view, reasoning that the scouts, just like the KKK, can discriminate all they want. They just can’t do it using public funds and on public lands.
In the meantime, while the scouts and SDSU exhaust all their appeals, the City Council should ameliorate the negative effects of the discriminatory practices of these groups using public lands.
Law schools such as California Western, USD and Thomas Jefferson do not support the military’s “Don’t Ask, Don’t Tell” policy. Yet federal law requires schools to allow military legal recruiters on our campuses or we face loss of federal funds.
The Association of American Law Schools (AALS), of which we are members, has a policy that requires us to take efforts to ameliorate the effect of the discrimination. We post signs when military recruiters are on campus. The signs indicate that the law school does not condone anti-gay bias. We hold forums, inviting military law experts to debate DADT.
The efforts have proven enormously successful. Law students see that bias against gays and lesbians is very real. And when it involves their classmates, it hits home.
It’s time that the city of San Diego requires the posting of such signs on city lands used by groups that discriminate. This is particularly so when such groups receive some kind of subsidy.
At the very least, the sign should reflect that the city of San Diego does not support or condone but condemns discrimination based upon one’s sexual or religious orientation. In the case of the Boy Scouts, it’s critical that we send that message to children using city property.
Robert DeKoven is a professor at California Western School of Law.
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