Posted By: Larry Hoyt, County Attorney, Boulder, Colorado
Curious – Part One:
Background: A funny thing happened on the way to the wedding chapel!
First, way back in 2004, the Honorable Gavin Newsom, Mayor of San Francisco, ordered the County Clerk to begin issuing marriage licenses to same-sex couples; numerous licenses were issued and ceremonies held within the space of about a week to great notoriety and in the face of multiple camera crews, in the San Francisco City Hall, and the San Francisco Superior Court refused to stop the weddings that were taking place.
However, a week later, upon petition of the state Attorney General and others, the state Supreme Court enjoined further issuance of same-sex marriage licenses, then decided on the merits that San Francisco did not have the authority to permit marriages that were contrary to state law; it ruled that the marriages that had been performed for same-sex couples to that date were invalid (see Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.)
All of this was happening while a coalition of individuals and groups were pursuing lawsuits in the California state courts seeking to overturn the state law (mini-DOMA: state “Defense of Marriage Act”, styled after the federal DOMA signed by Clinton in 2000, that states that no agency of the federal government shall recognize a same-sex marriage, and seeks to limit any use of the Full Faith and Credit Clause to extend recognition of a same-sex marriage in one state to other states) that limited state recognition of marriages to those comprised of two opposite-gender individuals.
Finally, in May 2008, the California Supreme Court took this issue head-on, and ruled that the California state constitution’s equal protection clause required marriage equality, that sexual orientation is a suspect classification, and that marriage is a fundamental right. Same-sex marriage certificates began to be issued on July 17, 2008.
*But wait! Even as the Court was issuing its ruling, same-sex marriage opponents had obtained sufficient signatures on petitions to place an initiated measure on the statewide ballot in November to amend the California state constitution to include a provision stating that marriage in California is solely between one man and one woman. On November 4, 2008, statewide voters approved the ballot measure, known as Proposition 8, by a margin of 52% to 48%, and county clerks throughout the state were ordered to stop issuing same-sex marriage licenses once again.
Immediately following the announcement by the California secretary of state’s office that Prop. 8 appeared to have passed, lawsuits were once again filed, this time directly in the California Supreme Court, asking that Prop. 8 be declared void.
So, Curiosity No. 1 is the California Supreme Court’s ruling from May 15, 2008, that limiting marriage to only opposite-gender couples is unconstitutional as a violation of equal protection under the state constitution. The Court stated the issue thusly:
Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
In re Marriage Cases 43 Cal.4th 757, 779-780, 183 P.3d 384, 39, 76 Cal.Rptr.3d 683, 699 (Cal.,2008)
It turns out that, but for the approval by the state legislature of a same-sex domestic partnership law, effective January 1, 2005, that provided for domestic partnerships with virtually all the state-law derived rights and responsibilities of marriage in California, the Court would have been presented with essentially the identical question that many other courts have addressed, i.e. is a state’s constitutional guarantee of equal protection violated by restricting state recognition of marriage to opposite-gender couples? Instead, the Court was presented with a “separate-but-equal” challenge, given the marriage v. domestic partnership scheme of California law.
Why is this curious? It evokes a great deal of irony that, essentially, the more rights and responsibilities a state recognizes for same-sex couples, the less likely it is to be able to maintain a distinction between those relationships and state-sanctioned marriage. Put another way, the states that treat same-sex couples the worst (i.e. no recognition, no rights or responsibilities that accompany the relationship, as opposed to the rights of individuals who have many characteristics, including a sexual orientation) have the best chance to discriminate against same-sex couples in excluding them from marriage. Perhaps it was good for California, but query where it leaves GLBT persons in the middle of the country who are seeking protections for even more basic rights, like employment, enjoyment of public accommodations, and housing?
NEXT TIME: Curiosity Part 2: Is a state constitution’s equal protection guarantee worth anything?