Gay Marriage Runs Legal Gauntlet
Breaking the Law or Upholding the Constitution?
March 6, 2004 11:06 AM
The debate on whether same-sex marriage breaks the law or upholds the constitution has been fired up across the nation since Mayor Gavin Newsom made changes to San Francisco marriage regulations.
Since Feb. 12, more than 3,400 marriage licenses have been issued to same-sex couples in San Francisco.
Gov. Schwarzenegger has ordered General Attorney Bill Lockyer to “take immediate steps” to stop the weddings, and President Bush has endorsed a constitutional amendment that would make same-sex marriages illegal through out the country.
However, two Superior Court judges have denied requests by conservative groups to issue a temporary restraining order to stop the city from issuing marriage licenses to gay couples.
These groups include two private organizations that have filed Superior Court suits against the city charging that gay marriage violates the California Family Code. The code includes Proposition 22, which states “only marriage between a man and a woman is valid or recognized in California," andwas passed in 2000 with 61 percent of votes.
In response, City Attorney Dennis Herrera on Feb. 19 filed a suit against the state, declaring that such provision violates California Constitution’s guarantee of equal protection.
According to CNN’s reports, San Francisco Superior Court Judge Ronald Quidachay said the city's lawsuit against California and the other two suits against the city would be combined into one case. The next hearing is scheduled for March 29.
That will only determine whether the court will issue a temporary restraining order to stop the marriage licenses from being issued, said Mark Yates, a faculty member for SF State’s paralegal program. But eventually the Supreme Court will have to rule whether banning gay marriage is unconstitutional, he said.
“We are looking forward to the end of the delays so the people can have their day in court for a full hearing on the merits of our lawsuit. I have no doubt that the court can read the laws on marriage, even if the mayor acts like he can’t,” said Randy Thomasson, executive director of Campaign For California Families -- also the plaintiff in one of the lawsuits filed against the city -- as noted in the organizations Web site.
"The attorney general has assured me that he will vigorously defend the constitutionality of the law in the case brought against the state by San Francisco," said Mayor Newsom in a statement on Feb. 20.
Lockyer, a potential rival to Schwarzenegger in the 2006 election, said he would let the Supreme Court decide whether issuing marriage licenses to same-sex couples violates the law or not. However, he requested the high court on Friday to immediately stop the weddings and cancel all the marriage licenses that had been issued to same-sex couples.
While the court denied his request, it gave the city until March 5 to file a response.
“The Supreme Court is going to look at what the (California) constitution actually says and how it has been interpreted in previous cases,” said Mark Yates.
The California Constitution states that an individual may not be “denied equal protection of laws.” Based on that, the California Supreme Court was the first in the country, in 1948, to invalidate the ban on interracial marriage, declaring it unconstitutional. However, “because of the conservative nature of the court my personal guess – not my legal opinion – is that they will not invalidate it this time. But it’s too early to guess. We have to wait and see what happens,” said Yates.
“I think they (the court) will decide that gay marriage should be legal because history tends to repeat itself. Who would have thought sixty years ago that blacks would have equal rights,” said Mike Sevik, an English major. “I know there is a big difference in talking about marriage rights and the right to sit on a bus with a person of a different color, but still, they are both civil rights. But I don’t agree with gay marriage being legal. I think there should be a different kind of union, maybe a legal partnership, a civil union, just something different than the conventional marriage."
“I would never compare it (the gay marriage issue) to the civil rights movement or to what blacks have had to face, but I do think it is a civil right. Marriage is a civil action,” said Velia Garcia, chair and associate professor of SF State’s Raza Studies department. "A country that prides itself on freedom is so quick to try to limit freedom on people that they don’t agree with.”
“I think this is denying people’s right and that’s not fair. That’s the whole backing behind Newsom’s arguments,” said Erin Figueroa, a speech communications senior, who said one day she will marry her girlfriend regardless if it’s legal or not. “But I don’t think the marriages will continue. I think it’s going to stop for right now because Bush is stepping in and he certainly won’t let it go."
While some people suggest a second option for same-sex couples like a “legal partnership” or a “civil union," many are not completely clear on the rights granted by these acts.
In 2003, former Gov. Davis signed the California Domestic Partner Rights and Responsibilities act that will become effective on Jan. 1, 2005. According to the National Center for Lesbian Rights, the “domestic partners” will then receive some of the rights and benefits granted to married spouses, including decision-making authority for funeral arrangements, community property, custody of provisions and child-support obligations, access to divorce court, and death benefits.
Vermont is currently the only state in the U.S. that allows civil unions. On the other hand, domestic partnerships are recognized by a dozen of cities and several states. However, being in a domestic partnership or a civil union does not confer any of the 1,049 rights and responsibilities given to heterosexual spouses under federal law, including social security and immigration benefits, joint filing of federal taxes and many others.
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