Same-Sex Marriage Fight Will Rage On

The California Supreme Court decision regarding San Francisco Mayor Gavin Newsom’s authority to grant marriage licenses to same-sex couples is but a small skirmish in what will be a long battle.

The California Supreme Court carefully avoided becoming embroiled in whether it is constitutional to exclude same-sex couples from the rights and responsibilities of marriage. Instead, its opinion dealt only with whether the mayor exceeded his authority by ordering the county clerk to grant marriage licenses to same-sex couples and with the status of those unions.

All sides on this issue should be warned against making this opinion something it is not.

The court’s conclusion that Newsom lacked the authority to contravene the state’s statutory marriage scheme is hardly surprising. Despite Newsom’s sincere view that his duty to uphold the state Constitution overrides his obligation to follow state law, to give one mayor the authority to countermand existing statutes would raise serious concerns.

To paraphrase Chief Justice Ron George, would a sheriff be allowed to refuse to enforce gun control laws because of an honestly held belief that such laws violated the 2nd Amendment? Similarly, would a mayor be able to provide domestic partner benefits to same-sex couples because of a sincere belief that limiting such benefits violated equal protection of the law? The court’s decision that Newsom exceeded his authority is a sound one.

The court’s decision, however, on the question of the validity of the more than 4,000 same-sex marriages already performed is lamentable. The majority’s hyper-technical conclusion ignores the human dimension present in the case. As Justice Joyce Kennard aptly noted in dissent: “It is premature and unwise to assert ... that the thousands of same-sex weddings performed in San Francisco were empty and meaningless ceremonies in the eyes of the law.”

Rather than ruling that the marriages performed are a legal nullity, the court should have kept them on hold pending an ultimate decision regarding the constitutionality of state laws banning same-sex marriage.

The part of the decision voiding the marriages is troubling and unduly harsh. Forcing same-sex couples to remarry if the benefits of marriage are finally extended to them, as the majority suggests, creates an unnecessary hurdle. There can be little debate that the 4,000 couples would much prefer to be in legal limbo than to be refunded the cost of their filing fees on their now-voided marriages.

It is not merely hypothetical that these couples could find their marriage rights reinstated. California has long been at the forefront of struggles to extend full civil rights to all citizens.

The irony that Newsom was born in 1967, the same year that the U.S. Supreme Court finally got around to striking down state bans on interracial marriage, is not lost. Almost 20 years earlier, in 1948, the California Supreme Court had struck down a similar ban on interracial marriage, finding the state Constitution compelled the court to choose equality and dignity over popular sentiment.

It is hard to imagine that the court will not be similarly compelled when it deals with the same-sex equivalent.

It’s clear that in California, as in other states, there are passionate, heartfelt disagreements over same-sex marriage. Few issues engender such division, even though remarkable strides have been made in societal acceptance of gays and lesbians.

Last week’s California Supreme Court decision on the San Francisco mayor’s authority gets us no closer to resolving the debate, however.

Those who oppose same-sex marriage should not view this opinion as a victory. Similarly, those who believe the same-sex marriage ban is unconstitutional should not see this as a setback. We will all have to wait for the Supreme Court of California to give us the final word on the constitutionality of same-sex marriage.

Lawrence C. Levine is a professor at the University of the Pacific, McGeorge School of Law in Sacramento.