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.
Where a state has no specific statute preventing recognition of out-of-state same-sex marriages, courts could decide to recognize California marriages. The typical rule of recognition is that a marriage valid where contracted is valid everywhere. There are, however, important public-policy exceptions to that rule that are relevant where recognition would completely overturn the understanding of marriage in the state. Again, only time will tell whether judges in these states will respect that understanding — and recent history suggests that there will always be judges sympathetic to the project of remaking marriage.
States with marriage amendments or statutes will deny recognition, but same-sex couples that marry in California will now have standing to challenge those laws. Where there is a statute but no amendment, state courts may decide the matter; but there may also be a move to take this issue into the federal courts with arguments that state laws and amendments preventing recognition violate the U.S. Constitution. A same-sex couple married in California but denied recognition in their home state would presumably also have standing to challenge the federal Defense of Marriage Act. That Act provides that a state need not recognize another state’s same-sex marriages.
Although they believe same-sex marriage should be mandated by the federal Constitution, advocates of marriage redefinition have assiduously avoided federal courts on strategic grounds. Specifically, their concern is that they are less likely to succeed in the federal courts and may create unfavorable precedent for a later case. Personnel changes on the U.S. Supreme Court or other developments may change that calculation, though, and the California decisions sets the stage for a federal lawsuit when activists are ready to try and federalize same-sex marriage.
Despite the court’s blatant disregard for their opinion, California voters will be able to respond in November. Voters in Florida will be voting on a similar amendment. A proposed amendment in Arizona might also be on the November ballot — although it appears to be bottled up in the legislature for now. Perhaps the imminent threat from California might provoke some movement there and in other states.
Recent events in California seem to guarantee employment for lawyers across the country in the foreseeable future. But what is good news for lawyers is not always good news for society, and in California now, it’s definitely bad news for marriage.
– William C. Duncan is director of the Marriage Law Foundation.