Same-sex marriage in CA: what happens next?

I've seen a lot of confusion over what's going to be happening over the next few months. Here's an attempt to clear some of that up, with a sort of a timeline.

  1. Unfortunately, the same-sex marriages performed in San Francisco in 2004 were nullified by the CA Supreme Court in Lockyer v. San Francisco. Those marriages have not been reinstated by this latest decision; to be legally married, those couples will have to get married again.
  2. This week's decision has no effect on marriage as a means of immigration, because immigration law is controlled by the US government, not by CA.
  3. The decision becomes effective in 30 days, unless the Court extends that to 60 days; then it may take a few days for the Appeals court to issue a directive to implement the decision.
  4. According to one LA Times article, "opponents could ask the court to rehear the case. And even if the court declined, that could delay the effective date up to 90 days."
  5. The "defendants" (the people opposed to same-sex marriage) are asking the Court to delay implementing the decision 'til November. I have no idea how likely the Court is to go along with that, but my impression is that it's unlikely.
  6. Presumably if there isn't a delay, then same-sex marriages can happen statewide from mid-June or mid-July through at least early November (and, I hope, forever afterward). Yay!
  7. CA does not have a wacky law like MA's against letting out-of-state people marry. (See the San Francisco County Clerk's FAQ) I imagine that quite a lot of same-sex couples from all over the US will come to CA to get married. I'm guessing that some of them will then return to their home states and sue to have their marriages recognized, although a fair number of states explicitly prohibit such recognition.
  8. (Btw, you can reserve a civil ceremony at City Hall in SF online if you're so inclined, but since we don't know when the ruling will go into effect, scheduled appointments may expire before the ruling goes into effect. Of course, you can also get married anywhere else in CA. I wonder if some people will go get married in Orange County or other bastions of conservatism just 'cause they can. :) )
  9. Several articles have suggested that there'll be an appeal to the US Supreme Court, but according to some very reliable sources (such as the Equality California FAQ, and a separate quote I saw from a lawyer with a background in constitutional law), that's not true; the state supreme court has final say on matters of the state constitution, except in cases where there are Federal constitutional issues, which there aren't in this case. (It's true that some people did try to appeal the MA decision to the US Supreme Court, but the court refused to hear the appeal, and I suspect (with no evidence, just a guess) that the request was just political posturing; I doubt anyone expected that to actually work.)
  10. (And incidentally, various groups would like to pass the Federal Marriage Amendment, but that seems to me very unlikely to happen. It's failed to pass in Congress three times in the past several years, and as of 2006, 51% of Americans thought it should be up to the states, while only 43% were in favor of a US constitutional amendment.)
  11. Once the decision goes into effect, couples who want to get married can do so by acquiring a marriage license from any county in the state, and then having a qualified person perform the wedding within 90 days.
  12. There's a group that wants to pass a CA constitutional amendment limiting marriage to one man and one woman; they're trying to get that amendment onto the ballot for this November's election. (State constitutional amendments regularly appear on the ballot in CA; it's part of our state's wacky charm.) The petition to get the initiative on the ballot has collected over a million signatures; the state is currently checking the signatures to see whether there are enough valid ones to qualify for the ballot. Given that they have nearly twice as many signatures as they need (as I understand it), I'm guessing there'll be enough valid ones, so I expect to see the initiative on the ballot.
  13. Assuming it makes the ballot, in November we'll vote on a state constitutional amendment.
  14. If the amendment gets more than 50% of the vote, then it will become part of the state constitution. I'm optimistically hoping this won't happen; a Field Poll in 2006 indicated that 43% of Californians were actively in favor of same-sex marriage, with 50% opposed, and my impression is that voters in general tend to be hesitant about amending constitutions on this issue (as opposed to just passing laws). I can't find any survey data about what people think about this particular proposed amendment (anyone have any data on this?), and I imagine this week's ruling might change some minds in both directions anyway, but still, I think it'll be pretty hard for them to get 50% of the vote. But let's not get complacent about this.
  15. Even if the amendment passes (and thus invalidates part of this week's S.C. decision), as someone on a mailing list pointed out, the Court's statement that sexual orientation is a suspect class (that is, subject to special protection from discrimination) will presumably still stand; that may end up being the most important part of this ruling.
  16. If the amendment passes, it's unclear what will happen to the status of couples who get married between now and November.

12 Responses to “Same-sex marriage in CA: what happens next?”

  1. Cheryl Myfanwy Morgan

    2. I’m not sure this is correct. The INS has been waging a campaign against transgender people by refusing to recognize marriages involving them. So, for example, a UK-based trans woman is legally recognized as a woman by UK and European law and may even have had her birth certificate updated to recognize her legal gender, but if she marries an American man the INS would deny them immigration rights on the basis that the marriage was between two “men”. This has been challenged in the courts, and the INS lost. The last time I talked to someone at the Transgender Law Center about this I was told that if a marriage is recognized by the State or California, one of the parties to the marriage is a Californian, and the couple plans to live in California, then the INS cannot refuse to recognize the marriage. Obviously I’m not an immigration lawyer, so I can’t speak authoritatively. Also I think the issue would have to be tested again in court in the case of a couple whose legal genders were the same. But I don’t think it is entirely hopeless.

  2. Vardibidian

    9. I was talking to an attorney about this, and he pointed out that if four of the Justices want to take the appeal, they’ll take it. But they won’t. There are three possibilites: they overturn the thing (and probably Massachusetts as well), they don’t take it at all, or they confirm it. Supporters really want to avoid the third, and opponents really want to avoid the first, so the easiest thing is to let it go.


  3. Joanne Merriam

    Thanks for your updates on this. I’ve been following the issue with interest for years. (As a Canadian, I honestly don’t get the big deal. I know gay marriage hasn’t been legal in Canada for very long, but all it took was one province to legalize it and then everybody else kind of shrugged – the people against it, while vocal, were a clear minority. My Dad, who is 64 and emphatically not a friend of teh gheys, was typical of his generation: his only comment was, “what do I care what those people do?”)

    I don’t understand the “leave it to the states” position. It can’t be left to the states, because of the full faith and credit thing. It seems amazing to me that half of Californians don’t know how their federal constitution works. Or is there something I’m missing?

  4. Jed

    Cheryl: Wow, cool! I had no idea. I stand corrected. Thank you!

    V.: I’m surprised by that. Can the Supreme Court really decide to hear a case if there are no Federal Constitutional issues involved? The attempted appeal in MA at least tried to claim Constitutional issues, by claiming that the MA court was denying MA its guaranteed democratic government. In CA, given that the legislature is in favor of this, even that extremely tenuous position doesn’t seem viable. But I suppose it might be possible to find some vague Constitutional connection in just about anything. …I’m confused by your last sentence — do you mean supporters and opponents on the Court itself, or elsewhere?

    Joanne: Yay for Canada!

    …Re full faith and credit: what you’re missing (and I didn’t know about this ’til 2004) is the public policy exception. The US Supreme Court said, in Pacific Employers Insurance v. Industrial Accident (1939), “the full faith and credit clause does not require one state to substitute for its own statute […] the conflicting statute of another state.” This exception has been applied to marriage laws on several occasions in the past, notably to laws regarding marriage between people of two different races, and marriages between relatives. So there’s lots of precedent for US states to decide not to recognize marriages performed in other states.

  5. Jed

    Addendum: The funny thing about the “leave it to the states” argument is that it tends to be applied by different people depending on what they’re arguing for. Traditionally, US conservatives say lots of things should be up to the states that US liberals tend to feel should be decided at the Federal level. But on certain issues, the two groups switch sides, and liberals insist that things should be left to the states while conservatives demand that they be dealt with by the Federal gov’t. I imagine there are explanations of why/how those stances aren’t contradictory, but the impression of side-switching amuses me anyway.

  6. Vardibidian

    I meant on the court. And yes, the Court would have to come up with some sort of federal issue, which they could if they wanted to, presumably connected with full faith. It would be preposterous, but no more preposterous than other things the Court has done in history.


  7. Kaitlin Duck Sherwood

    Joanne Merriam, the piece that is missing is the federal Defense of Marriage Act. That explicitly says that states can refuse to recognize out-of-state marriages. That might seem to contradict Full Faith and Credit, but FFandC does have the public policy exception. Disclaimer: I am not a lawyer.

  8. Kaitlin Duck Sherwood

    16. My husband was in a conference call with the marriage equality activists (people like the lead counsel in the case), and he reported that they said that there was no chance that the marriages that happen between June 16 and Nov 4 could get invalidated. I asked hubby why, and he said that basically you aren’t allowed to pass laws retroactively. (This is why, for example, they can’t pass a law saying that if you are convicted of locking your daughter in a basement for 20 years, the sentence is two million years in solitary confinement in a cell with robust colonies of mosquitos, pubic lice bedbugs, and fire ants.)

    Disclaimer: I am not a lawyer, my husband is not a lawyer, and I might have bobbled something a little bit in the translation.

  9. Jed

    V.: Fair enough.

    Kaitlin: Good point about the Federal DOMA. But DOMA is only a law, not a constitutional amendment, so if it were found to be in conflict with full faith and credit, DOMA would be overruled. (And it’s still possible that that could happen at some point, but I’m not holding my breath.) So it’s the public-policy exception that’s really what keeps full-faith-and-credit from applying in this context. (But I too am not a lawyer.)

    Re invalidating marriages: I’ve been seeing mixed statements about whether it would be possible for marriages between June and November to be retroactively invalidated. The argument you’re citing sounds plausible to me, but then again the proposed amendment explicitly says that the state won’t “recognize” same-sex marriages, and allowing them to stand seems like it would be recognizing them. So at this point, I believe the people who say that we don’t know for sure.

    But regardless, I agree with your blog entry that says let’s just defeat the amendment and not have to worry about whether marriages can be invalidated.

    Note to any same-sex couples thinking about getting married in the next few months: Kaitlin has an interesting entry giving advice; worth reading.

  10. Vardibidian

    Another possible grounds would be the strict-scrutiny question. As I understand it (dimly), the Court held that the equal-protection law applied to homosexuals as a class, and that therefore strict scrutiny applied, and the statued failed. I would guess that the Supreme Court, which has (as I, again dimly, understand it) never held that homosexuals constitute a class at all much less a protectable one, could question the validity of strict-scrutiny in cases where the State and the Nation disagree.

    Also, possibly, the Supreme Court might decide not to allow states to have different ideas of what constitutes a protectable class of people. This would be very problematic, even for the current Court, but it’s possible. More likely would be a way to disallow the standing of the defendants, perhaps by forcing a lower court to prove a new standard of class-membership, or harm, or reasonability, or anything, really, and then making the whole thing start again if they pass that test. That would be more typical of the Roberts Court so far.

    I still think that the Supreme Court won’t take it, for the same reasons I did above, but if they wanted to take it, I don’t think it would be a problem.


  11. jim michl

    I am curious as to the immigrations laws and how they will apply to gay couples and marrage.
    If they are legally married will that give the alien a legal right to live in US.
    Thanks for your response.

  12. Jed

    Jim: See item #2 in this entry, and Cheryl’s response to it in the comments thread.


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