A closer look: Nation’s courts face urgent legal debate

Unprecedented ceremonies and court decisions have recently
catapulted the gay marriage debate into the national spotlight,
wedging it into the thick of steamrolling presidential campaigns
and forcing the country to settle a legal debate that has no
foreseeable end. Many of the nation’s courts will have their
hands full for most of the immediate future as gay rights advocates
garner momentum. With instances like the Massachusetts Supreme
Judicial Court ruling earlier this month, which determined barring
gay marriage is unconstitutional, and San Francisco’s
recognition of thousands ““ and counting ““ of gay
marriages, a sense of immediacy has been branded on the issue.
Currently, it is up to individual states to determine the validity
of gay marriages and civil unions. Thirty-eight states have laws or
amendments barring the recognition of gay marriage, though many of
those states recognize civil unions. California is one such state,
but one of its most recognized cities is looking to turn the
existing law on its head. Mayor Gavin Newsom has advocated the gay
marriages in San Francisco ““ even performing a ceremony
““, prompting thousands of gay couples from around the country
to flock to the city to have ceremonies performed for them. Newsom
has argued that California codes, which define marriage as being
between a man and a woman, conflict with a clause in the state
constitution providing for equal protection under the law. Efforts
brought to two superior courts to stop the ceremonies being
performed in San Francisco have been denied, with the courts saying
they pose no immediate or irreparable harm. Gov. Arnold
Schwarzenegger has taken a public stance against the marriages,
even ordering state Attorney General Bill Lockyer to halt the
ceremonies. Lockyer’s office shot back saying it was working
as quickly as possible on the issue, and admonished the governor
for trying to tell the office what to do. And on Tuesday, President
Bush announced his formal support for a constitutional amendment to
ban gay marriage. The statement should play a large role in his
re-election campaign, and many Democrats have accused him of using
the gay marriage issue for political gain. The White House has
maintained that the definition of marriage needs clarity and argued
for protecting the sanctity of marriage. Bush’s stance has
emphatically galvanized the gay marriage issue from a series of
isolated pockets scattered throughout the country into a nationwide
debate. But as this debate develops, Massachusetts and California
will lead the way.

State court issues Meanwhile, on the San
Francisco matter, Lockyer is pressing the California Supreme Court
for a speedy resolution on the legality of the city’s gay
marriages. At this point, the composition of the state court would
make it unlikely that it would decide in favor of same-sex
marriages, said Brad Sears, a UCLA law lecturer and administrative
director of the Charles R. Williams Project on Sexual Orientation
and the Law. But Sears added that as far as the law is concerned,
the state constitution’s equal protection clause takes
precedence over the California code defining marriage as being
between a man and a woman. “Every California statute must be
consistent with the state constitution,” Sears said.
“That’s what’s being challenged now.”
Eugene Volokh, a UCLA law professor, also said gay marriage
advocates in the state shouldn’t expect much success on the
San Francisco issue. “I don’t think that going through
courts will work for them in California; I don’t think
California courts will strike down this statute,” he
said.

The role of the U.S. Supreme Court Neither the
Massachusetts nor San Francisco cases will make their way to the
country’s highest court in their current forms. But it is
reasonable to believe that in the foreseeable future a gay marriage
case could be considered for review by the U.S. Supreme Court. In
this case, there is no clear indication on how the court would
stand on the issue. In the most notable sexual orientation law case
of 2003, the court ruled 6-3 in Lawrence v. Texas, striking down an
anti-sodomy law the majority believed to be discriminatory against
gays. The majority opinion, held by Justices Anthony Kennedy,
Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul
Stevens, argued that there is a constitutional right to engage in
private homosexual intimacy. Justice Sandra Day O’Connor
issued a concurring opinion. But both Kennedy, who wrote the
majority opinion, and O’Connor, in her own written opinion,
specifically stated that they were limiting their opinions to the
criminalization of private sexual activity. They made it clear that
their decisions did not extend to recognition of same-sex
marriages. These exemptions make it difficult to predict what the
court would decide on the issue of gay marriage. This is especially
so in the case of the relatively moderate O’Connor. She has
sometimes served as a swing vote between the traditionally
conservative justices, composed of Chief Justice William Rehnquist,
Kennedy, Antonin Scalia and Clarence Thomas, and the traditionally
liberal justices made up of Breyer, Ginsburg, Souter and Stevens.
Sears believes that O’Connor “definitely will stick to
that position,” and that she would not base an analysis of
same-sex marriage on the same privacy grounds of same-sex sexual
activity. Volokh, who previously clerked for O’Connor in the
Supreme Court, predicts a substantive shift from the Lawrence
ruling. “Today, it would probably be at least a 7-2 vote
against finding a constitutional right to gay marriage,” he
said. There are also fairly clear distinctions between Lawrence and
a potential review of gay marriage issues by the Supreme Court,
said Jonathan Varat, former dean and current professor at the law
school. “Lawrence emphasizes privacy and sex intimacy,”
said Varat, who clerked for the late Justice Byron White, who was
replaced by Ginsburg in 1993. “Public recognition is
distinguishable from that.”

Amending the issue The constitutional right to
gay marriage to which Volokh referred may never even come up for
debate if the president’s recommendation of a constitutional
amendment banning gay marriage passes through both houses of
Congress (or a constitutional convention) and then three-fourths of
the states. “We need to act now,” said White House
spokesman Scott McClellan. “The constitutional process will
take time.” Varat sees the amendment proposal as a long shot.
“We rarely have amended the constitution for purposes seen as
limiting people’s rights … other than prohibition, but that
was repealed anyway.”

With reports from Bruin wire services.