SAN FRANCISCO—A week after the California Supreme Court knocked down the state's ban on same-sex marriage, the dust here shows no signs of settling. Gay marriage opponents filed a request yesterday asking the court to delay implementation of the ruling, which would allow gay couples to marry as soon as June 16. "Permitting this decision to take effect immediately—in the light of the realistic possibility that the people of California might amend their Constitution to reaffirm marriage as the union of one man and one woman—risks legal havoc and uncertainty of immeasurable magnitude," the court filing said. Conservative groups have collected more than 1 million signatures supporting an initiative that would amend the state Constitution and outlaw same-sex marriage. The initiative will most likely appear on the November ballot.
Most legal experts don't expect the court to grant the stay. For one thing, the court rarely bows to what amounts to overt political pressure. For another, its decision last week made it very clear that a majority on the court views marriage as so fundamental a right that it is unlikely to be moved by the prospect of administrative inconvenience. In the majority opinion, Chief Justice Ronald George wrote that he views the right to marry as one of "the core set of basic substantive legal rights and attributes . . . that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
Because the initiative that will appear on the November ballot proposes an amendment to the state Constitution, and not a new statute, the court has no power to stop it. But legal experts say the opinion's language makes it clear that the court's decision wasn't undertaken lightly—and that the justices aren't likely to be swayed by the specter of "uncertainty," legal or otherwise.
County clerks across the state have begun readying their offices for a deluge of marriage applications.
In a related development earlier this week, a federal appeals court in California became the first to follow some of the state Supreme Court's reasoning when it reinstated a lawsuit that challenges the military's "don't ask, don't tell" policy. After hearing the case of Maj. Margaret Witt, an Air Force flight nurse who was discharged from the military after 21 years of service when it was discovered that she was a lesbian, two judges on the Ninth Circuit Court of Appeals in San Francisco ruled that the government needed to provide more than simply a "rational basis" for its policy.
The panel didn't go as far as the California Supreme Court, which ruled that laws that require "differential treatment" on the basis of sexual orientation must, like ones laws affecting race or religion, meet the highest constitutional standard. But the judges did send the case back to a lower court, saying the government needed to prove that it could meet at least an intermediate standard of scrutiny by showing what "important government interest" is at stake that warrants the intrusion into Witt's private life.
Until the California court's decision, sexual orientation was rarely given the same consideration as the Constitution's most protected classes—including race, religion, and gender. Many legal scholars believe last week's opinion will open the door to a flood of civil rights cases attempting to change that.