GAY MARRIAGE IN US SUPREME COURT'S FUTURE?: SCOTUSblog

No one following the gay marriage issue in the courts of a number of states doubts that the issue will one day go to the Supreme Court, in some form--unless, of course, Congress and the States take the unlikely step of wiping out the idea altogether by constitutional amendment. But a curious thing seems to be developing: the first issue the Justices may have to face might not be whether same-sex couples have a right to get married, but rather whether they have a right to stay married.

In the flurry of lawsuits filed this year in state courts, most seeking to get other states to imitate Massachusetts in allowing gay marriage, one legal tactic leaps out: they are based primarily if not exclusively on state constitutions, not the federal Constitution. For example, the City of San Francisco's lawsuit in state Superior Court (San Francisco v. California, docket CPF-04 504038) challenging a state law restricting marriage to opposite-sex couples relies on a state constitutional clause that says "A person may not be denied equal protection of the laws." That, of course, is the tactic that worked last year in the Massachusetts Supreme Judicial Court (Goodridge v. Department of Public Health).

That appears to be the result of a very specific strategy among gay rights advocates: do not press the issue of a federal constitutional right to marry, because that may be premature and perhaps unnecessary; instead, seek to establish a right to marry under state law, and give the country a chance to see over a period of years that American society will not crumble if gay marriages occur. This is a strategy of intentional gradualism, somewhat akin to what the civil rights and women's rights movements used successfully.

Behind the strategy, in part, is the realization that the Supreme Court as presently constituted very likely would not find a basis in the Constitution to recognize gay marriage as a right. In the Court's most sweeping decision yet on gay rights, the ruling last year in Lawrence v. Texas recognizing a due process "liberty" right to engage in sexual intimacy with a homosexual partner, Justice Anthony Kennedy wrote for the Court that the case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." The Court studiously avoided basing its decision on federal equal protection grounds (although Justice Sandra Day O'Connor would have done so, she said in an opinion for herself).

But, recently, federal constitutional issues of a different sort have begun to make their way into the cases in state courts, raising the prospect that appeals would come within the Supreme Court's jurisdiction. Those issues have been arising out of the simple fact that, in California and Massachusetts, same-sex couples have already obtained marriage licenses, and were married. In response to efforts to undo those already accomplished marriages, federal arguments are being deployed.

The California Supreme Court is now moving toward a decision, due by late August, on the legal status of more than 4,000 marriages performed in that state after the city of San Francisco began issuing marriage licenses. ...

The city of San Francisco has argued, in its brief before that court, that couples who already have married have a due process right under the Fifth Amendment not to have their marriages nullified, at least without giving them notice and a hearing. Relying in part on the Supreme Court's 1967 ruling in Loving v. Virginia, striking down a state ban on interracial marriage, the city contends: "Marriage status, and its license and certification, constitute property rights that trigger due process protection...At a minimum, due process requires that the State afford notice and an opportunity to be heard to same-gender couples whose rights will be affected by a determination as to the validity of their marriages and marriage licenses."

Last week, another federal constitutional question made its way into the state court cases. In the case of Cote-Whitacre, et al., v. Department of Public Health, in Suffolk County Superior Court in Massachusetts, a group of already-married same-sex couples challenged the efforts of the state's governor to wipe out all marriages in Massachusetts of out-of-state couples who don't plan to live there. The governor has the reluctant support of the state attorney general. The governor is relying on a 1913 law that, according to the governor's legal staff, bars marriage in Massachusetts for those who could not marry in their home state; the governor says none of the other 49 states would allow such marriages. ...

The Massachusetts case, of course, is just beginning, so the California Supreme Court case for now appears to have a better chance of producing sooner an appeal to the U.S. Supreme Court.

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posted by Eve at 12:30 PM | Link |

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