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April 16, 2008

Rumor: California Gay Marriage Ruling on the Way

A rumor has been bouncing around for a few days that a decision has been made in the consolidated gay marriage cases that were heard by the California Supreme Court last month. One person at the law school mentioned it and I read the same rumor online: the Court will strike down the Family Code provisions limiting marriage to a man and a woman.

At the time, I didn't think much of it. Rumors about impending decisions in important cases are common and usually based on little more than counting justices based on their prior holdings. (For example, in this case I've picked three against, three for, and one whom I can't figure out based on earlier cases, the way he acted at oral argument, ethnicity, and politics. A nice, safe bet!) But a writer at Huffington Post made some pretty specific claims today:

Sources wishing to remain anonymous in the California Court System indicate that the court, which has until June 2, 2008 to issue it's marriage ruling, is considering issuing it on Friday, May 23, 2008, with the decision being written by Chief Justice Ronald George. The Court is readying itself for a backlash that may follow the rumored and bold decision. There is talk that the Court will not simply strike down Proposition 22, but will move the State of California toward full marriage, if not even granting full marriage rights for gays and lesbians outright.

It's probably just a wild-assed guess. He's left himself hedge-room with that "is considering" language and it's unclear what he means when he writes that the court will not "simply strike down" the Family Code marriage definition (Prop 22). If the court rules in favor of gay marriage, it will be because the Family Code provisions are unconstitutional under state or federal equal protection or due process clauses. If the Court relies on the federal constitution, it will have essentially passed the buck to the federal courts. If the Court relies on the state constitution, the ruling might actually stick...for a while.

Marriage amendment petitions are very common in California (there have been 13 separate attempts since I moved here). They don't usually get very far, but pro-gay marriage cases have a tendency to create strong backlash and not just against gay marriage. Several marriage amendment petitions are in the works right now, including one that would also forbid domestic partnerships. Virginia did the same thing in 2006 when voters adopted an amendment banning legal recognition of relationships which "approximate the design, qualities, significance, or effects of marriage." For many, it isn't just a struggle over the word "marriage."

And, of course, it's an election year. Gay marriage was much discussed on the campaign trail in 2004, but people are still arguing about how much the presence of marriage amendments on the ballot affected the presidential race. McCain, Clinton, and Obama have all announced that the question should be left up to the states, so it's not clear that any candidate would get a bump from a pro-gay marriage ruling. McCain could possibly separate himself from the pack by picking a running mate who is firmly pro-traditional marriage.

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posted by Gabriel Malor at 02:55 AM

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