San Francisco has begun to issue marriage licenses to same-sex couples. On the one hand, this is more an act of protest than a real legal change. California does not recognize same-sex marriages. In fact, in 2000, the voters of California enacted a law defining marriage as the union of a man and a woman. On the other hand, what’s happening in San Francisco is significant. It could certainly put a case before the California state supreme court, with a result matching Goodridge. The mayor of San Francisco said he was relying on the provision of California’s constitution that forbids discrimination. Every state constitution has an Equal Protection clause, and every state supreme court could follow the lead of Goodridge and overturn state Defense of Marriage Acts on constitutional grounds. If the San Francisco weddings don’t lead to such a court challenge in California, same-sex marriages performed in Massachusetts soon will.
The San Francisco story is also important because it is the leading edge of what we are going to see continuously now in the wake of events in Massachusetts. The Goodridge decision is bound to set off disputes over gay marriage in every state in the land. It’s already happening in California, and it’s happening in the many states now rushing to consider DOMA laws or state constitutional amendments. The Democrats are going to try to blame the president for turning gay marriage into a national political issue. But the fact is, Massachusetts has forced the hand of the states, of congress, and of the president. The gay marriage movement brought suit in Massachusetts in hopes of nationalizing gay marriage. Now the process has begun. This issue has been forced on the country by the gay marriage movement, and by four liberal justices from Massachusetts–not by president Bush. The outcome, as I’ve already said, will either be national gay marriage, or some version of a Federal Marriage Amendment.