Gay and lesbian couples hit major potholes on the road to same-sex marriage on March 11. The California Supreme Court ordered San Francisco officials to stop issuing those licenses, at least for now. That same day, the Massachusetts legislature took the first steps toward amending that state constitution to outlaw gay marriage but create civil unions. Or did it?
Marriage licenses continued to be issued in Portland. A series of advisory opinions by Oregon's leading legal officials back up the contention that excluding gays from marriage probably is in violation of the state constitution. But the courts will have the final word.
The euphoria in San Francisco came to an end at 2:30 on March 11 when the city stopped issuing marriage licenses to same-sex couples.
The California Supreme Court had unanimously ordered the injunction on the narrow question of whether the city had the authority to issues the licenses under state law. It avoided the greater constitutional issue of whether a failure to issue such licenses discriminate against gay couples.
'All that happened today is that matters were put on hold. This ruling hits the 'pause' button, not the 'stop' button,' said Jon Davidson, an attorney with Lambda Legal. But many legal scholars were surprised by the Court's action and say it does not bode well for the city winning on the narrow issue.
Mayor Gavin Newsom said, 'I believe confidently that when we get to the constitutional question, I will prevail.' He acknowledged that there likely would be setbacks along the way.
That same afternoon the city filed suit on the broader issue of equal protection, and the following day the National Center for Lesbian Rights (NCLR) filed suit on behalf of six same-sex couples denied marriage licenses. Lambda Legal, the ACLU, and other organizations joined in the lawsuit.
'It is long past time for California law to fully embrace and protect the relationships of lesbian and gay couples,' said Kate Kendell, executive director of NCLR. 'We are confident that the issues presented in our lawsuit and the real life stories of these couples will provide the court with compelling justification finally to correct this longstanding injustice.'
The California Supreme Court has set a timeline for motions and filing briefs on the narrow issue of the city's authority to issue a license that points to a hearing about the beginning of June. The constitutional question will be heard in a trial court and likely will take more than a year to work its way to the Supreme Court.
The status of the marriages that already have been performed is left in legal limbo.
In the 29 days since San Francisco began, it had issued marriage licenses to 4,161 gay and lesbian couples. Appointments had been scheduled for an additional 2,688 couples, both same-sex and heterosexual.
MASSACHUSETTS
The Massachusetts legislature, meeting as a constitutional convention on March 11, three times overwhelmingly voted for a state constitutional amendment that would limit marriage to 'the union of one man and one woman'; and establish civil unions for same-sex couples that 'provide entirely the same benefits, protections, rights, and responsibilities that are afforded to couples married under Massachusetts law.'
A fourth affirmative vote is required for the convention to pass the amendment, and a subsequent session of the legislature also must pass the amendment before it is sent on to the public for a vote in 2006.
But the fat vote margins reflected procedural maneuvers on the part of gay rights advocates propping up the 'compromise' amendment in order to defeat worse alternatives. They succeeded admirably on that count. The worst alternative—to ban gay marriage without mentioning civil unions—went down 136 to 62.
Now they hope to defeat the compromise so that no constitutional amendment moves forward at all. That would allow the ruling in favor of gay marriage by the Massachusetts Supreme Judicial Court to stand.
Analysis by the Boston Globe shows that the core of supporters who want no amendment has grown from 55 at the February session of the constitutional convention to 77 at this session. An amendment requires 101 affirmative votes.
A hard-core group of legislators opposed to gay marriage is unwilling to support any compromise that includes recognition of gay families through civil unions. Thus it appears the convention is just as divided as at its first session, where no position can win a clear majority.
The legislature returns to sit as a constitutional body on March 29-31 when new and recycled amendments likely will be considered. Gay advocates hope that they can continue to run out the clock and keep any amendments from passing.
Even if supporters of the 'compromise' amendment manage to cobble together a bare majority to pass it, many observers believe it will be a compromise without a constituency and may well die at the hands of the voters.
OREGON
A judge declined to issue an injunction halting same-sex marriages in Portland, on March 8. 'I am not satisfied by the standard of clear and convincing evidence that the plaintiffs [seeking to stop issuance of the marriage licenses] would prevail under Oregon public meeting law considerations,' said Judge Dale Koch.
That same day, the Legislative Counsel for the Oregon Senate issued an advisory opinion that the state constitution 'requires the state to grant a same-sex couple a license to marry on the same terms as a couple of the opposite six. Providing same-sex coupes with a separate civil contract, such as civil union, is not sufficient; separate is not equal.'
Gregory Chaimov said the only way the state could issue a 'commitment license' would be to offer them to both gay and heterosexual couples and get out of the marriage business, leaving that to religious groups.
Oregon Attorney General Hardy Myers essentially agreed in an advisory opinion issued by his office on March 12. 'The Oregon Supreme Court likely would conclude that withholding from same-sex couples the legal rights, benefits and obligations that under current law are automatically granted to married couples of the opposite sex violates' the state constitution. He also believes that current law prohibits counties from issuing those licenses.
Myers' opinion governs state actions and precludes state officials from taking legal action against county officials to stop them from issuing the licenses. But he does believe that those actions are technically illegal, at least until the court rules otherwise. He said that state officials should not recognize those marriages as legal.
Gov. Ted Kulongoski asked Multnomah County to come into compliance with the rest of the state and stop issuing marriage licenses to gay couples, but he said the state would not seek to impose that choice upon the county.
More than 2,200 gay couples have obtained marriage licenses in Portland. Pending lawsuits challenging the marriages will have another hearing on April 2.
Basic Rights Oregon reports that in Multinomah County, Ore., officials may choose to stop issuing any marriage licenses in order to not discriminate against anyone. County officials said March 12 they face the impossible choice of either following state statute, which forbids same-sex marriages; or following the state constitution, which forbids granting privileges 'that do not equally belong to all citizens.' On Monday, the county was expected to cease the granting of any marriage license, to any couple.
Wisconsin and Michigan
The Human Rights Campaign condemned the Wisconsin Senate passage of a constitutional amendment that would deny marriage, civil unions or domestic partnerships to same-sex couples in the state. 'We have faith in the fairness and compassion of the people of this
state,' said Chris Ott, executive director of Action Wisconsin, the statewide gay, lesbian, bisexual and transgender rights group. 'Wisconsinites will soundly reject this amendment should it pass the Legislature again next January, especially once they understand that it is designed to ban civil unions, comprehensive ... partnership benefits and marriage."
The Michigan House of Representatives defeated a proposed constitutional amendment that would have denied marriage, civil unions or domestic partnerships to same-sex couples in Michigan.
Other Marriage News
New Jersey's attorney general said state law did not permit same-sex marriages and warned local authorities that issuing marriage licenses to gay and lesbian couples could bring criminal prosecution, Reuters reports.
The Washington Post reports that support appears to be growing for legalizing civil unions for same-sex couples, as well as for allowing states to make their own laws regulating marriage, according to a Washington Post-ABC News poll. About 51 percent favor allowing gays to form civil unions with the same basic legal rights as married couples, up 6 points in less than a month. A slightly larger majority also rejected amending the U.S. Constitution to ban same-sex marriages in favor of allowing states to make their own laws, an increase of 8 points in recent weeks.
