Gay Marriage: the Impact of the California Case
The California court has three broad choices, legal experts say:
• The Massachusetts approach. In 2004, the Massachusetts Supreme Judicial Court ruled that gay couples have the right to marry. Many experts doubt that there are enough votes on the California court to support such a sweeping decision, even if the state's Constitution allowed it, something even liberal members of the court ruminated about yesterday. "There is nothing in the state Constitution that says there is a right to same-sex marriage," Justice Joyce Kennard said at one point. It's possible, of course, that the justices could still find the grounds to invalidate Proposition 22, then demand that marriage licenses be issued immediately, but after yesterday's hearing, that may be a long shot.
• The New York approach. In 2006, the highest court in the state, the Court of Appeals, ruled that denying marriage to same-sex couples was not a violation of the state Constitution. Legal experts say this is entirely possible in California, too. "It's hard for me to see the court invalidating this statute on the arguments that have been made," says Kmiec. One possible outcome: A divided court could find the statute constitutional, while ensuring the state's domestic partnerships be completely equal in every way to marriage, and leave it at that.
• The New Jersey approach. In 2006, the New Jersey Supreme Court ruled that same-sex couples cannot be denied the rights and privileges of married couples but left it to the Legislature to determine whether those partnerships would be called marriages. The Legislature decided to call them "civil unions," joining Vermont and New Hampshire. Because California already has a strong domestic partnership law—and because the Legislature has already shown its willingness to legalize gay marriage—that choice would be more complicated here.
During oral arguments, several of the justices seemed inclined to push the final say on this matter into the political realm. "These questions are best left to the democratic process," said Justice Kathryn Werdegar. Which means the court could rule the law unconstitutional, while pushing the final decision on to the state Assembly. If that happened, the Legislature, dominated by Democrats, would very likely pass a law legalizing gay marriage. The governor has said he will respect the court's wishes, which means he would probably sign it. Then, of course, the political football for the presidential contenders can really begin.
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