Gay Marriage Squabble 

Why California’s Supreme Court ruling was a lost battle, not a lost war

Thursday, Aug 19 2004

About 200 people showed up at the corner of San Vicente and Santa Monica boulevards in West Hollywood, more than marriage-equality rally organizers expected, considering that the fairly impromptu protest was competing with demonstrations in Santa Monica directed at a visiting George W. Bush. The West Hollywood rally was called in response to the California state Supreme Court ruling that came down earlier in the day, which unanimously rejected San Francisco Mayor Gavin Newsom’s decision on Valentine’s Day to allow same-sex couples to marry in his city. The ruling wasn’t too much of a surprise. But what came as a shock was the court’s 5-2 decision to annul all 4,000 of the same-sex marriages performed in San Francisco without allowing any of them to make their case in court.

That explains one protester’s “Annul This” poster, which featured a blown-up photograph of a hand giving the finger, with a wedding band strategically moved to the offending middle digit. As local religious leaders, elected officials, selected married couples and gay-marriage activists all spoke to the crowd, “Got equality?” signs and, most poignantly, at least a half-dozen copies of San Francisco wedding licenses posted on cardboard placards, bobbed in the setting sun.

“This is a horrible decision, it was an unnecessary decision,” said Los Angeles Gay and Lesbian Center chief executive officer Lorri Jean. “And in spite of all the right wing’s claims to the contrary, these marriages did not harm anybody. Businesses were not confused how to handle these people, chaos did not reign. Heterosexual marriages did not crumble because of these newlyweds. Yet still the courts chose to strip them of a thousand critical rights and protections. They did this without even giving these couples their day in court. This is a travesty of justice, and we are right to be mad as hell about it.”

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Despite the decision, Jenny Pizer, senior staff attorney for the gay, lesbian, bisexual, transgender advocacy group Lambda Legal, pointed out there’s plenty the court’s decisions did not do, since it was only looking at the actions of Mayor Newsom and carefully chose not to give any indication how it might rule on the broader issue of the legality of same-sex marriage.

“Their marriages were taken away from them in a way that would never, ever be done to heterosexual couples. We’re terribly sad about that,” she said. “But today’s ruling does not tell us anything at all about the rights of same-sex couples in California to equal marriage rights.”


If anything, the stage has been set for another case working its way up to the state’s highest court, Woo v. Lockyer, which challenges the constitutionality of denying same-sex couples the right to marry in the first place. Ten same-sex couples who couldn’t make it to San Francisco’s City Hall before the marriage ceremonies were halted are plaintiffs in a case that is similar to suits filed in Washington state, Oregon and New York. Local marriage-equality activists are hoping their state will be the next after Massachusetts to allow gay and lesbian couples to legally wed. But Pizer notes that among all those states California already has well-developed case law that rejects sexual-orientation discrimination, which bodes well for a court decision that goes her way.

On a parallel track is San Francisco Assemblyman Mark Leno’s AB 1967, or Marriage License Non-Discrimination Act, which would allow same-sex couples to access the benefits of marriage afforded by the state. AB 1967 is currently being held in the Assembly’s Appropriations Committee but will be re-introduced in December.

Geoffrey Kors, executive director of Equality California, a statewide lesbian, gay, bisexual, transgender political-rights group, sees enough votes in both houses to pass the bill (Assembly Speaker Fabio Nuñez will be a co-sponsor) and said that the governor is open to signing it. Kors feels AB 1967 is likely to pass thanks to the images that came out of Newsom’s San Francisco. “There’s no doubt it changed votes,” he said, pointing to Assemblywoman Hannah-Beth Jackson from Santa Barbara, who changed her mind on the issue after watching happy couples walk out of City Hall together.

“But it’s more than that,” Kors said. “We say it put a face on the discrimination, and now we have 4,000 couples who had rights taken away from them, forcibly having their marriages annulled. And that actually is something I think a lot of non-gay people are just appalled by. That would never happen to them.”

Kors may be overly optimistic. All those happy images did nothing to sway U.S. House members who passed a court-stripping bill last month that would remove the issue of gay marriage from the federal court’s purview. They also didn’t move Missouri voters, who voted overwhelmingly August 2 to amend their state constitution to ban same-sex marriage. Another half-dozen states will decide the same issue within the coming months. The most important state constitutional ballot test may come in Oregon, where 3,000 same-sex couples got married in Multnomah County earlier this year, and the issue is in front of voters in November. Since those couples are so local, Kors is hoping they act as ambassadors to wary straight voters. “There are 3,000 couples who are telling their stories, and that’s why people think that’s the one that we might win.” Marriage-equality activists are girding for California’s own potential state constitutional amendment, which could make it to the ballot as early as 2006 if gay-marriage opponents get organized. If either Woo v. Lockyer prevails or AB 1967 becomes law before any state constitutional initiative, Kors believes, voters are likely to let same-sex marriages in California stand.

As queer fate would have it, the California Supreme Court decision came the same day New Jersey Governor James McGreevey announced he was coming out of the closet and resigning, apparently over allegations that he gave his boyfriend a cushy state job and that he sexually harassed him. “People are shocked and trying to figure what that’s all about,” said a stunned Jean, who was a law school classmate of McGreevey’s at Georgetown. But West Hollywood Mayor John Duran, who also spoke at the rally, was optimistic for not only same-sex marriage hopefuls in California but also McGreevey himself. “If he wants to come here and get married,” Duran said of the soon-to-be former New Jersey governor, “he can come.”

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