On Monday, California’s secretary of state officially certified for the November ballot an initiative measure to amend the state’s constitution to define marriage as the union of a man and a woman. The amendment would respond to the California supreme court’s May decision that the state constitution includes a nebulous right that mandates a redefinition of marriage to include same-sex couples.
Given the upcoming vote on marriage, pro-family groups who had been involved in the California litigation asked the court to modify its decision so as to prevent its going into effect before the November vote. This would allow the voters an effective response to the court’s ruling and prevent a situation where same-sex couples begin to marry in June only to have the status quo of marriage restored in November.
The attorneys general of 13 states filed two separate letter briefs with the court supporting a stay of the decision. They were concerned about litigation in other states based on California same-sex marriages.
The request for a stay of the court’s decision provoked the first display of enthusiasm from the California attorney general’s office during the history of the marriage litigation. Unfortunately, the enthusiasm was not for the voter’s right to weigh in on the marriage decision but for preemptive surrender. The attorney general’s filing said: “This historic litigation is now concluded. . . . It is time for these proceedings to end.”
On June 4, the California Supreme Court announced that it would not stay the effect of its decision and that the decision would be final on June 16 at 5:00 PM. Thus, county clerks can presumably begin to issue marriage licenses to same-sex couples at that point.
The refusal of the court to wait for California voters to weigh in on the marriage ruling creates a scenario with potential implications for every other state. California, unlike Massachusetts, has no law that would prevent out-of-state same-sex couples from marrying there. Thus, they could go to California, marry and return home to seek legal recognition from their home state courts and by extension, changes in their state’s marriage laws.
This is already playing out in New York, where Governor David Patterson — seeing an opening to circumvent the legislature’s unwillingness to redefine marriage — ordered all state agencies to recognize same-sex marriages contracted in other states. Unless this policy is overturned by a lawsuit that was filed this week, New York same-sex couples could go to California to marry and return home to have their marriages recognized by state officials. What could not be accomplished in New York through legislation or litigation could theoretically be achieved by the mandate of a single politician.
Another fertile ground for marriage recognition litigation would seem to be the states that recognize some kind of civil-union status for same-sex couples. New Hampshire law says that couples in a same-sex marriage from another state will be treated as having a New Hampshire civil union. It is not clear whether the other states with similar legal statuses (like Connecticut, New Jersey, and Vermont) will do the same — but there will very likely be litigation in those states on this point.