Gay Couple Challenge State Laws on Marriage : Courts: They sue county in effort to obtain license. Attorney says test is first of California law.


Benjamin Cable and Marcial McCarthy had a traditional church wedding two years ago in nearly every sense: stretch limousine, flower-carrying bridesmaids and groomsmen, exchange of vows at the altar and a reception for 200 afterward.

All that was missing was a radiant bride. The two grooms, in jest, each sported garter belts on their arms.

And although the couple think of their union as one “sanctioned before God” and check “married” on questionnaires, the state sees them as individuals without marital privileges or protections.

Now, the two West Hollywood men have decided to challenge California’s marriage laws, which deny marriage licenses to same-sex couples. They took the first step in February when they tried to submit an application for a marriage license with the Los Angeles County clerk’s office in downtown Los Angeles. The clerk’s office refused to accept it.


The two, who have had all their legal documents changed so that each has the last name Cable-McCarthy, filed a lawsuit last week in state court against County Clerk James H. Dempsey. Paul S. Marchand, a Hollywood attorney representing the two, said he is asking for a writ of mandate ordering the clerk to issue the marriage license.

“We just want to be recognized as a married couple with all the benefits that heterosexual couples get, like the tax benefits and health benefits,” said Benjamin, 28. “We don’t want special rights; we just want equal rights.

“I am uninsured and Marcial works for a large corporation, but I can’t get the company’s health benefits for spouses,” he said. “Then there are other hassles. Just to get a joint checking account, we had to bring in our Social Security cards, drivers licenses and passports.”

No state recognizes the union of same-sex couples. The only countries that do are Denmark and the Netherlands, said Evan Wolfson, staff attorney for the Lambda Legal Defense and Education Fund, a gay and lesbian organization.


Wolfson and Marchand said this is the first test case involving California’s law. There have been challenges dating back more than two decades in other states, all of them unsuccessful, Wolfson said. A recent case in Hawaii was the first in 20 years to reach a state Supreme Court, Wolfson said. The effort to overturn the state law was denied, but it is on appeal.

Four California cities--West Hollywood, Berkeley, Laguna Beach and Santa Cruz--have enacted domestic partnership laws, but they fall short of the protections and privileges that the state grants heterosexual marriages. And many of the provisions of these laws apply only within the bounds of the cities that enacted them.

In West Hollywood, for example, the law extends spousal benefits to city employees’ partners. It also gives same-sex partners the same rights as spouses to visit their partners in a hospital or jail, and it prohibits landlords from evicting a person whose domestic partner moves in with them. The Laguna Beach law gives domestic partners power of attorney in health care and in disposing of personal effects at the time of death.

Wolfson said marriage has long been held as a fundamental civil right of every citizen, and the question is whether the state “can arbitrarily impose a restriction on whom a person chooses to spend his or her life with in marriage.”


“Just 25 years ago, it was considered OK to impose restriction of choice based on race,” he said. “Today, some still believe it’s OK to impose a gender restriction on a marital partner. Someday that too will fall. It certainly won’t fall soon enough, but in my lifetime.”

Given the other civil rights issues facing gays and lesbians--the ban on military service being one--some question whether state-sanctioned marriage is “the right fight to take on now,” Wolfson said. There are also fears that a negative decision would produce a precedent that could undermine future efforts, he said. But he added that there is agreement in the gay community that married gays and lesbians should be given the same privileges allowed heterosexual marriages.

Marchand agreed. “There is no constitutional justification for denying gays and lesbians the right to marry based on sexual orientation,” he said. “The (California) law is defective on several counts, one of them being the opposite sex requirement that defines marriage as a civil contract between a man and a woman. That was not introduced into the code until 1977, after the gay and lesbian movement became more visible.”

Because the suit is against the county clerk, who also serves as the clerk of the Superior Court, Marchand said he filed the case in the 2nd District Court of Appeal in Los Angeles to avoid potential conflict. He said that if the two men win the lawsuit upon appeal, he expects the state attorney general’s office to appeal to the California Supreme Court.


Benjamin and Marcial say the battle is more than a personal one, explaining that it is an attempt to act on behalf of gay and lesbian couples everywhere.

“What we are doing is not just for us,” Benjamin said. “It is also for other couples like us, who would like to get married but are afraid of becoming a target. There is no such thing as ‘right love’ and ‘wrong love'--that was what was done with interracial marriages. All the same arguments have always been used to oppress people.”