The New 'I Do':
The Way We're Handling It Is Pretty Half-Baked
The Washington Post
By Joe Mathews
June 15, 2008Hold the champagne.
Or at least the California sparkling wine.
This week should be a joyous one for those of us who
believe in the right to marry the person you love. A month
after the California Supreme Court overturned the state's
ban on same-sex marriage, gay couples will be able to walk
into county offices here and secure the same marriage
license to which heterosexual couples such as my wife and
I are entitled.
Partners are hastily arranging nuptials, and the
wedding-industrial complex of caterers and consultants is
anticipating a summer windfall. In San Francisco, Phyllis
Lyon and Del Martin, who are both in their 80s and have
been together for more than five decades, have arranged to
be married by Mayor Gavin Newsom minutes after the ban is
officially lifted at 5 p.m. tomorrow. "It means a great
deal that we can get a license like anyone else," Lyon
recently told the San Francisco Chronicle.
Gay rights supporters should toast the happy couples,
but they might want to wait before raising a glass to the
state. The ruling will hardly change California, a place
blissfully devoted to its live-and-let-live ethos. But
California -- with its dysfunctional politics and
government -- may hurt the cause of same-sex marriage.
It's far from clear that California's institutions --
the courts, legislature, governor or ballot process --
possess the credibility or power to bring a lasting
resolution to any public debate, especially one as
contentious as same-sex marriage. Yes, gay marriage
supporters are likely to claim more victories than defeats
at all levels of California government. But victories in
specific lawsuits or bills don't guarantee the unambiguous
legalization of same-sex marriage here. The state's madcap
legal and political systems offer too many ways to
frustrate or delay a final decision. For gay couples and
their supporters, California could become an expensive,
time-consuming quagmire -- gay marriage's Vietnam.
How can this be, you ask, after the justices' ringing
endorsement of gay marriage rights?
Because California has a powerful ballot-initiative
process -- the one that in 2000 allowed voters to outlaw
gay marriage in the first place -- and the state Supreme
Court doesn't always get the final word. Consider the
ballot initiative that Californians will vote on this
fall. Sponsored by gay marriage opponents, the measure
would define marriage as a union between a man and a woman
and put this wording into the state constitution, thus
reversing the Supreme Court's ruling.
Or not.
"If people vote yes [on the ban]," said Steve Smith, a
political consultant working to defeat the initiative, "I
think you're going to have immediate litigation." Lawyers
on both sides speculate about all kinds of lawsuits, from
technical attacks on the initiative's language to broad
federal claims about the nature of republican government.
Richard L. Hasen, an election law expert at Loyola Law
School in Los Angeles, suggests that even if voters do
approve the ban, a court could grant a stay on its
enforcement. "That would allow marriages to continue to
take place," he said, until judges sort out the
initiative's constitutionality -- a process that could
take years.
Confusing? Sure. But that's California.
If, on the other hand, the initiative fails, gay
marriage opponents wouldn't surrender either. "Would that
be the end of the road? Obviously not," said Glen Lavy, a
senior counsel with the Alliance Defense Fund, which has
provided much of the legal firepower behind the movement
to ban same-sex marriage. "This is a fundamental
institution of society."
Gay marriage opponents would launch various legal
challenges, most on religious grounds. Any institution
with a sacred affiliation and a public service mission --
religious schools, health facilities, charities, even
summer camps -- could argue that being forced to recognize
the marriages of same-sex couples who walk through its
doors is a violation of religious freedom. According to
Brad Sears, executive director of the Williams Institute
on Sexual Orientation Law and Public Policy at UCLA's law
school, there could be thousands of such claims.
Even if these legal efforts go nowhere, the political
battle will continue. If the ballot initiative is defeated
in November, nothing prevents its backers from drawing up
another one, to come before voters in 2010, the time of
the next regularly scheduled statewide election -- or even
earlier if the state holds a special election. "This is
one of the problems with the initiative process," said
Pamela S. Karlan, a scholar at Stanford Law School. "There
isn't any way of saying, 'The voters have spoken, and it's
over.' They can be asked to speak on it again and again
and again."
Why can't the other branches of California government
put a stop to this?
The legislature and the governor could try, but their
power is limited, and their record on same-sex marriage
doesn't inspire confidence. For at least four years, the
Democratic-controlled state legislature has supported
marriage rights for gays but has proven too ham-handed to
overcome the ban voters enacted in 2000.
In California -- wouldn't you know -- only the voters
can change statutes enacted by ballot initiative. The
legislature ignored this inconvenient fact, and on more
than one occasion passed bills that were almost certainly
unconstitutional. Gov. Arnold Schwarzenegger, a very
California-style Republican, vetoed those bills, probably
saving gay marriage supporters from potentially disastrous
court rulings. California lawmakers, an irresponsible
species, were hardly grateful, criticizing the governor
for his actions.
But frankly, Schwarzenegger hasn't shown much
leadership. He has been trying to have it both ways on the
issue. Asked about the subject during his 2003 campaign,
he delivered an all-time great malapropism: "I think that
gay marriage is something that should be between a man and
a woman." At a state Republican convention in 2004, he
blasted Newsom, who had married gay couples in San
Francisco even though it was against state law. Less than
two weeks later, he told Jay Leno that he would have no
problem if such marriages were legalized.
Recently, Schwarzenegger has said that he believes that
marriage should be between a man and a woman but that he
doesn't want to impose his views on Californians. And he
opposes the current initiative, aligning himself with
same-sex marriage supporters. But no one should count on
the Terminator traveling through time to save gay
marriage. Schwarzenegger often sounds like a man who just
wishes that the issue would go away.
So why do supporters need the governor and the
legislature, if the state Supreme Court has already made
its ruling?
Because the court's decision is so broad that it raises
new political and legal questions that will have to be
taken up by the other branches of government. For the
first time, the court ruled that gay people are a "suspect
classification" -- a group, such as women or African
Americans, who face discrimination because of immutable
characteristics -- and that any law governing sexual
orientation requires "strict scrutiny." In his majority
opinion, Chief Justice Ronald M. George cited a new right
that appears nowhere in the text of the state
constitution: "the right of an individual and a couple to
have their own official family relationship accorded
respect and dignity equal to that accorded the family
relationship of other couples."
In a footnote, George added that such a right doesn't
apply to polygamous or incestuous relationships. Good to
know. But the court may have opened the door for "other,
less deserving, claims of a right to marry," as Justice
Marvin R. Baxter noted in a response to the majority
opinion. (Please, nobody call the Mansons.)
Even if novel claims to marriage based on the same-sex
marriage decision die in the courts, gay marriage
opponents could use them as political fodder. And that's
hardly the only political problem that might arise. In
three separate sections of its 121 pages, the decision
raises the possibility that, to achieve equality for
same-sex couples, the state might eliminate the term
"marriage" altogether. The decision doesn't endorse such a
remedy, but it doesn't rule it out, either.
The elimination of "marriage" is unlikely, even in
California. But at least some people here seem to think
that no marriages are better than same-sex marriages.
Clerks in two California counties have announced that
they'll stop performing wedding ceremonies this week for
any couples, gay or straight. (They'll still have to hand
out licenses.) Just imagine the backlash if the push to
recognize same-sex couples turned marriage into a merely
religious rite (and right).
These tangles will seem academic to gay couples, who
have waited years for simple freedoms. It shouldn't matter
that California politics and controversial social policy
make for, well, a rocky marriage. But it is a strategic
problem. And gay rights advocates would be wise to
remember that, with all the political and legal risks
involved, the practical advantages of legalizing same-sex
marriage in California are underwhelming.
Gay couples who upgrade their status from domestic
partners to married spouses will win only a handful of new
benefits, and many aren't worth all that much. In
California, married couples may live apart, while domestic
partners have to reside in the same home. Married couples
also have a little-known right to "confidential marriage,"
meaning that the marriage certificate and the date of the
marriage aren't part of the public record. (The reasons
for this provision are another California story
altogether.) Domestic partnerships, on the other hand, are
public. When it comes to divorce, though, married spouses
are actually at a disadvantage -- they must have a legal
residence in the state and must seek a court judgment;
divorcing domestic partners don't need either.
Gay couples who get married this week will gain these
new rights and responsibilities, but they still won't have
all the same freedoms as heterosexual married couples in
California. That's because federal law provides legal
recognition only to marriages between a man and a woman.
So when it comes to spousal benefits related to federal
income taxes, Social Security, federal housing, food
stamps and military and veterans' programs, same-sex
married couples remain unmarried in Uncle Sam's eyes.
If there's ever going to be true marriage equality in
California, the fight that counts most won't take place in
Sacramento. For that fight, the battleground is
Washington.
Joe Mathews, an Irvine senior fellow at the New
America Foundation, is the author of "The People's
Machine: Arnold Schwarzenegger and the Rise of Blockbuster
Democracy."
This article appeared on page B1.
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