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A Legal Rundown on the Decision to Allow Gay Marriage

What’s the Ruling Mean?


Thursday, May 22, 2008

In its May 15 ruling, the California Supreme Court stated that denying gay couples the right to marry conflicted with the state’s constitution and, thus, these same-sex couples should be permitted to wed. Despite varied reactions from Californians, one idea prevails: a sense of the unknown, among Average Joes and those fluent in legalese alike. After all, in the United States, same-sex marriages were only first recognized following a 2004 ruling by the Massachusetts Supreme Judicial Court in favor of these unions. The full extent of how the May 15 ruling will affect Californians remains to be seen.

At the Santa Barbara County level, those responsible for the processing of marriages licenses are still awaiting word from the state on, for example, whether they’ll be issuing revised forms or the standard ones, with traditional boxes for a bride and groom. “The only thing we’ve heard about-and it’s through the news-is the 30-day waiting period,” said Mary Rose Bryson, the County Recorder division manager.

On the decision’s legal intricacies, attorneys can provide solid answers to some questions, educated guesses to others. Clare Pastore-a co-counsel on In re Marriage Cases and an attorney with the Southern California chapter of the ACLU-explained how the federal government’s disregard of any same-sex marriages results in the loss of certain rights allotted to heterosexual couples. For example, rights such as filling joint tax returns, receiving Social Security benefits from their spouses, granting non-citizen spouses a green card, or even being recognized as a married couple in other states are lost to same-sex couples. Couples who married in San Francisco during the time Mayor Gavin Newsom permitted same-sex marriages would have to marry again in order to be state-sanctioned. And registered domestic partners would have to re-file to marry, though they wouldn’t necessarily have to dissolve the domestic partnership.

Altogether, these new California couples are barred from more than 1,000 specific rights afforded to heterosexual couples. For example, same-sex couples would not be covered by 1974’s Employee Retirement Income Security Act, which regulates private-industry pension plans. And due to the federal Defense of Marriage Act of 1996, employers would not need to extend job benefits to a same-sex spouse. “With most issues regarding marriage equality, federal courts are not seen as being as hospitable as state courts,” Pastore explained. “States are more generous in their interpretation of federal protection clauses.”

But there’s good news for same-sex couples, too. Adoption may be easier now, for while California law already prohibits discrimination against gays adopting, married couples are often seen as more suitable parents. “As a practical matter, I suspect that it will make it easier-a shortcut in the same way that it is for heterosexual couples,” Pastore explained. And divorce, which will inevitably occur for some, won’t be any more difficult than it is for heterosexuals.

Pastore spoke favorably of Governor Arnold Schwarzenegger, who has vowed not to support any attempts to change the state constitution in a way that explicitly bans same-sex marriage. “I think Schwarzenegger is someone who believes that gays and lesbians have the rights that [heterosexual couples have],” Pastore said.

Perhaps most importantly, Pastore posited that the Limit on Marriage Amendment-an initiative pushed by social conservatives that would put a measure on the November ballot letting voters decide whether the state constitution should forbid same-sex marriage-would not retroactively void the unions of those already married. “My analysis is that nothing will happen to annul or delegitimize the marriages that have already taken place,” she explained. “Laws are not generally retroactive.” But she doesn’t know for sure, explaining, “It’s an unknown.” And that’s, of course, if the measure gets approved. Though 61 percent of California voters approved Proposition 22, which banned same-sex marriage in 2000, polls show that majority to be withering away.

No one seems quite sure if the California ruling will affect other states’ regard of gay couples, either. Jenny Pizer, another co-counsel on In re Marriage Cases and an attorney with the New York-based Lambda Legal, said she thought it would depend on location and circumstance. “In California, there’s been a lot of community education over the years, and legal advocacy for gay people,” she said. But federal courts and state courts in other parts of the nation can still be “quite hostile to gay people,” she explained.

As old a tradition as marriage may be, both California and the rest of the United States clearly have some work to do if same-sex marriage is to be treated like any other union between two people. However, those supporting the matter remain hopeful that, in time, this will be the case. Pizer promised, “The sky will not fall.”

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