Marriage Debate in a New Arena

With supporters of same-sex marriage losing a major round in the California Supreme Court, the debate seems likely to move to the Legislature, a shift that will pose risks for leaders of both major parties.

Assembly Speaker Fabian Nunez said Friday that the Legislature would take up a bill next year to legalize gay marriage, and that he believed it would pass.

“I see this as a modern-day civil rights issue,” Nunez (D-Los Angeles) said in a meeting Friday with Times editors and reporters. “Sure it’s controversial ... [but] I suspect it will go to the governor’s desk.”

Both Democrats and Republicans say that whether the bill becomes law will hinge on Gov. Arnold Schwarzenegger. Democrats might be able to win passage of a same-sex marriage bill but they don’t claim to have the votes to override a veto if Schwarzenegger doesn’t sign it.

So far, the governor has remained ambiguous on the issue, even while many fellow Republicans have opposed it. During the flood of marriages in San Francisco, Schwarzenegger was carefully vague, offering opinions that were open to interpretation. Then in June, after being pressed on the issue in a Folsom restaurant, he answered: “I don’t care one way or the other.”

In a radio interview Friday morning, Schwarzenegger’s opinion seemed largely the same, and did not deal with the fact that he could have the final say in legislation. “I think right now our law says that we don’t accept same-sex marriage.... If the people change their minds, then so be it. If the courts change their mind, then so be it. Then we will follow those laws,” he said.

Supporters of gay marriage hope that a major factor in the legislative debate will be the roughly 4,000 same-sex couples who wed this winter in San Francisco. Despite Thursday’s state Supreme Court decision rendering the marriages invalid, those couples have pushed the issue into the state’s political spotlight and put a human face on the concept, supporters say.

“Before San Francisco, same-sex marriage was an abstract idea,” said Matt Coles, a lawyer for the American Civil Liberties Union. “It’s much easier to treat an idea in a shabby way than a person in a shabby way. The couples who got married and their vivid stories are going to be a very powerful force in the debate.”

San Francisco Mayor Gavin Newsom ordered the licenses for same-sex couples six months ago despite state law declaring that marriage is between a man and a woman. Newsom believed state marriage laws violated provisions in the state and federal constitutions against discrimination.

Opponents are downplaying the importance of the couples in the political debate, particularly in light of Thursday’s ruling. “I don’t think this event will have any impact one way or another,” said Assemblyman Ray Haynes (R-Murrieta). “It was all a big game from the beginning, and the court said the game’s over.”

Either way, the Legislature is poised to be the next battleground for the issue.

Assemblyman Mark Leno (D-San Francisco), who had proposed a bill in February allowing gay marriage, plans to reintroduce that measure in the upcoming legislative session.

His previous attempt foundered amid election-year politics and the swarm of other issues facing legislators. But the bill passed the Assembly Judiciary Committee, which supporters say marked the first time a legislative body in the United States had formally voted in favor of same-sex marriage.

This time, however, Leno believes the legislation has newfound support largely because of the thousands of couples who took advantage of the gender-neutral licenses. Leno said he had garnered the new support of Secretary of State Kevin Shelley as well as the state treasurer, insurance commissioner and controller.

“Time is on our side,” Leno said. “With every month, public support grows.”

Others, however, are skeptical about whether politicians will embrace the controversial matter. “I don’t think the Legislature is going to rush into such a divisive issue,” said Larry Levine, a law professor at the University of the Pacific. “Not when they can wait for the courts to act.”

Action to allow gay marriage in the states that have legalized it has come initially from states’ supreme courts and not their legislatures. No state legislature in the country has yet approved same-sex marriages.

Most Californians do not support gay marriage, opinion polls show. According to a recent Los Angeles Times poll, less than a third of Californians believe same-sex couples should be allowed to marry. The same poll shows that almost half of the people who identify themselves as Democrats support gay marriage while Republicans are overwhelmingly opposed.

The numbers also show that California is more closely divided on the concept than the country as a whole. Nationwide, only a fourth of respondents said they favored same-sex marriages.

Republican legislators and other opponents argue that voters already decided against gay marriage when they passed Proposition 22, which bars California from recognizing same-sex marriages that might be allowed in other states.

“The fact that people voted to protect marriage put a high, high hurdle in front of any judge that would want to create gay marriage out of their own case law interpretations,” said Randy Thomasson, director of the Campaign for California Families.

Leno countered that Proposition 22 only addressed how same-sex marriages performed in other states would be viewed in California and not the central issue of whether gay marriages as a whole should be allowed in California. Meanwhile, court cases filed in San Francisco and one in Los Angeles challenging the constitutionality of same-sex marriage are moving forward and are expected to reach the state Supreme Court within a couple of years.

With the legislation and litigation moving ahead on separate fronts -- and successful constitutional challenges to heterosexual marriage laws in Massachusetts high court last year and a Washington trial court last week -- gay rights proponents are optimistic.

“We have a good chance in the Legislature and the courts,” said Jon Davidson, chief counsel for the gay rights group Lambda Legal. “Everything we’ve been through the last year will have significant impact. We’re moving forward.”

But Jordan Lorence, the Alliance Defense Fund attorney who challenged San Francisco’s actions before the California Supreme Court, said he was convinced that the crusade for gay marriage would ultimately fail. If the courts or Legislature move to legalize gay marriage, he predicted, the voters will step in to reverse it. “This juggernaut of inevitability is illusionary,” he said.

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Times staff writer Jean-Paul Renaud contributed to this report.