California gay-marriage fight could propel issue to U.S. Supreme Court - San Jose Mercury News

California gay-marriage fight could propel issue to U.S. Supreme Court - San Jose Mercury News

California gay-marriage fight could propel issue to U.S. Supreme Court
LEGAL BATTLE : COULD BALLOT MEASURE PROPEL ISSUE TO U.S. SUPREME COURT?
By Howard Mintz
Mercury News
Article Launched: 05/17/2008 01:30:32 AM PDT


May 17:
Same-sex weddings: If you want to marry soon, think smaller, creative
It was 1964. Conservative groups across California, angered by a new law aimed at discriminatory housing practices, mobilized to wipe the law off the books by amending the state constitution.

The initiative was a hit at the ballot box. Two-thirds of the state's voters approved the change in the constitution. But the new law didn't stick - both the California Supreme Court and the U.S. Supreme Court struck it down, finding that it violated federal equal protection rights.

More than four decades later, that scenario could unfold again in California. This time, however, the issue is gay marriage, and California - because of its situation - may end up being the battleground that ultimately propels this modern day civil rights battle into the U.S. Supreme Court.

With social and religious conservatives moving to erase Thursday's California Supreme Court decision to legalize gay marriage with a fall ballot initiative, California is in a unique position. While dozens of states have enacted gay-marriage bans, none has done so after a state Supreme Court found a legal right for gay couples to wed.

"We'd be in uncharted legal territory," said Shannon Minter, legal director of the National Center for Lesbian Rights, a lead attorney in challenging the gay-marriage ban.

The 4-3 state Supreme Court ruling found the state's ban on same-sex marriage unconstitutional, and declared that gay couples have the same legal right to marry as heterosexual couples.



The Supreme Court rested its decision solely on the California Constitution, but the constitution would be amended if opponents succeed in getting an initiative passed that would outlaw same-sex marriage. Backers have gathered more than 1 million signatures, with just under 700,000 verified signatures needed to put it on the ballot.
A decision on whether it will reach the ballot is expected in June, about the same time gay couples can begin getting marriage licenses under the Supreme Court ruling.

There's little doubt that the California Supreme Court's ruling would be trumped if the measure passes, legal experts say. It would not only reinstate a gay-marriage ban but also place a legal cloud over the marriages of the thousands of same-sex couples who decide to wed in the coming months.

"The California Supreme Court needs to follow the California Constitution, and that is what the majority did on Thursday," said Jennifer Rothman, a Loyola University law professor. "So if a state constitutional amendment passed banning same-sex marriage, the court would have to honor that, at least as a state law matter. That doesn't mean that's the end of the story."

Civil rights groups say they would argue that any initiative, if passed, would not apply retroactively to gay couples who have already married. More important, they would also argue that the initiative violates the federal Constitution because same-sex couples are guaranteed rights under the Constitution's equal protection language. Therefore not only would the issue likely go back to the California Supreme Court, but possibly shift to the U.S. Supreme Court because federal constitutional questions would be raised.

For gay and lesbian couples who wed in the coming months, the legal uncertainty could put them in a precarious position if the ballot measure passes. The proposed measure does not specifically address same-sex couples who are already married, but reads: "Only a marriage between a man and a woman is valid or recognized in California."

Glen Lavy, a lawyer for the conservative Alliance Defense Fund, said his organization would argue any gay marriages would be invalid. He also said the state Supreme Court should put this week's ruling on hold until after the November election to avoid that confusion.

But civil rights lawyers plan to fight for any marriages that take place from June until the election in November.

"Our position certainly would be that once somebody is legally married, you can't undo that," Minter said.

The broader question is whether the ballot initiative would withstand another legal challenge similar to the one mounted against the laws struck down Thursday by the state Supreme Court. This time, federal constitutional rights to equal treatment would be at stake.

Lavy said he is confident the ban would hold up under federal law.

"The federal constitution does not provide for same-sex couples to be included in marriage," he said.

In this week's ruling, the California Supreme Court rejected the argument that it should follow the "will of the people" if a ballot initiative violates a constitutional right.

The court cited the legal challenge over the 1964 housing law, a constitutional amendment that allowed real estate agents and landlords in California to reject home buyers or tenants of their choice, even if it might be based on racial discrimination.

That law, Proposition 14, was struck down in 1967 by the state Supreme Court and, a year later, by the U.S. Supreme Court. The circumstances are different in that there was no state Supreme Court ruling in place when voters approved the housing law - but it nevertheless demonstrates that a constitutional amendment such as one banning gay marriage is not etched in legal stone.

Legal experts are divided over how the U.S. Supreme Court would deal with a gay-marriage case if it reaches their docket - not a foregone conclusion given the twists that could take place - but there is general agreement that civil rights lawyers would have an uphill fight with the current conservative majority.

"The federal courts would be looking at what all the states have done," said Vikram Amar, a University of California-Davis law professor. "California is still an outlier."




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Contact Howard Mintz at hmintz@mercurynews.com or (408) 286-0236.