Issue:  Vol. 44 / No. 16 / 17 April 2014
 
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Court weighs stay of marriage ruling

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m.bajko@ebar.com

City Attorney Dennis Herrera. Photo: Jane Philomen Cleland
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The state Supreme Court is weighing whether it should stay its historic ruling allowing same-sex couples to marry until after the fall election, when voters likely will be asked to pass a constitutional amendment banning same-sex marriage.

The Proposition 22 Legal Defense and Education Fund, one of several right-wing groups backing the anti-gay amendment, asked the court to postpone allowing its ruling to take effect next month in a petition it filed last Thursday, May 22. The conservative legal group is also seeking a hearing before the court prior to when the first gay nuptials are expected to take place, which are expected to begin June 17. [See story page 1.]

The fund's lawyers requested that the court postpone its decision from becoming effective until after the November 4 election results are certified and it is determined if the marriage initiative passes. The amendment to California's Constitution states "Only marriage between a man and a woman is valid or recognized in California."

Should the court not grant a stay of the ruling, legal experts have said it is uncertain what would become of the same-sex marriages that do take place if the constitutional amendment should pass. The amendment is not written to be retroactive and it is unclear if the gay and lesbian couples that marry would see their marriages become null and void.

The anti-gay legal group raised just such a legal quagmire as a reason for granting the stay.

"Permitting this decision to take effect immediately – in light of the realistic possibility that the people of California might amend their constitution to reaffirm marriage as the union of one man and one woman – risks legal havoc and uncertainty of immeasurable magnitude," states the fund's petition. "This court should act prudently by staying the effectiveness of its In re Marriage Cases decision until after the secretary of state has compiled the results of the November 4, 2008, election."

Andrew Pugno, legal counsel for the Proposition 22 Legal Defense Fund, did not respond to a request for comment.

The group's altruistic sounding reason for seeking the stay masks what is really behind the request: fears that as Californians witness months of same-sex weddings happening across the state – without any negative consequences to the marriages of heterosexual couples – they will be less likely to support the constitutional amendment.

Polling released since the court ruled in the case already shows signs of such a scenario playing out. A Los Angeles Times /KTLA Poll released May 23 found that a bare majority – 54 percent – of respondents said they would vote for the amendment come November. More importantly, the poll found that more than half of Californians do not believe gay relationships are morally wrong or degrade heterosexual marriages.

But a Field Poll released May 28 found that for the first time in 30 years of tracking the issue, 51 percent of registered voters approved of allowing gay and lesbian couples to marry, with 42 percent of the 1,052 people surveyed opposed to same-sex marriages.

The court's decision and the polling are bolstering the hopes of gay rights advocates, who have argued that unlike eight years ago, when a similar anti-gay marriage measure was passed by 60 percent of voters, this year victory is within reach. Having the gay marriages occur is a crucial part of their strategy to win.

San Francisco City Attorney Dennis Herrera on Wednesday filed the city's opposition to the legal group's request for a stay. He said he saw no reason for the court to delay allowing gay and lesbian couples to tie the knot.

"To continue to postpone the constitutional rights of gay and lesbian couples for a moment longer, based merely on political speculation as to whether the constitution may be amended, would be both illegal and inhumane," stated Herrera.

As of press time it was unclear how soon the court would respond to the stay request or if it would push back when its initial ruling in the case would go into effect. The court released its 4-3 decision overturning the state's antigay marriage laws on Thursday, May 15.

Under California law the court's decision goes into effect 30 days after it is released, which would be Monday, June 16. However, several factors have sparked confusion on when the actual date of implementation will be.

When a petition for rehearing is filed, the Supreme Court often extends the effective date of a ruling to give itself more time to consider the rehearing petition. Under the Rules of Court, the court could take a total of 60 days beyond the opinion's effective date.

As of press time, it was unclear what timetable the court would set for itself. Spokeswoman Lynn Holton wrote in an e-mail that the Supreme Court had yet to decide if it would consider the petition within the 30 days before the decision takes effect, or if it would need additional time to do so.

Another factor sowing confusion is that the Supreme Court instructed the state's Court of Appeal to issue a writ of mandate directing "the appropriate state officials to take all actions necessary to effectuate [the] ruling."

The lawyers for the anti-gay group argue in their petition that "the omission of a specific timeframe for effectuating the decision makes it unclear whether county clerks and other local officials must begin issuing" marriage licenses to same-sex couples as soon as the decision becomes final next month or must wait until after the appellate court issues its writ.

As the court considers the conservative group's requests, both sides on the issue are stepping up pressure on state officials and the court's seven justices. Anti-gay group Campaign for Children and Families posted an action alert on its Web site last week urging supporters to contact Chief Justice Ronald George, who authored the court's decision, and ask him to stay the decision "so that same-sex marriages won't be left in limbo and the people can express their ultimate will in the constitution."

Anti-gay groups have also asked supporters to call both Governor Arnold Schwarzenegger and Dr. Mark Horton, director of the Department of Public Health who oversees the state's Office of Vital Records, and ask them not to alter the state's marriage licenses.

The vital records office is tasked with deciding what changes need to be made to the licenses in order to accommodate same-sex couples. The anti-gay groups are arguing that the marriage forms can only be changed by the Legislature first passing a bill, which the governor must then sign into law.

Gay rights supporters have also sent out alerts requesting people to contact the governor's office and urge him to oppose any stay of the court's ruling. Boyce Hinman with the Lambda Letters Project in Sacramento sent out an alert this week saying it is vital for the governor to hear from LGBT people and their allies.

"If only people who oppose marriage equality are the ones who call in that may persuade him to support the initiatives to ban same sex marriage," warned Hinman. "Our opposition will be flooding the governor with calls."

Herrera also called on the governor and Attorney General Jerry Brown to join him in opposing the anti-gay groups' delay tactics.

"The governor has admirably expressed his acceptance of the Supreme Court's ruling, and has repeatedly voiced his opposition to efforts to overturn it. In light of his views, I would hope he agrees that there is no reason to continue denying equality and dignity to same-sex couples," stated Herrera.

A spokesman for Brown said that the attorney general would not back the request for a stay.

Schwarzenegger spokeswoman Camille Anderson told the Bay Area Reporter this week that the governor also would not support a stay of the ruling. Upon the court's releasing its decision, Schwarzenegger immediately said he would uphold it, and last week he said the ruling would benefit the state financially.

To contact the governor's office call (916) 445-2841. Horton can be reached at (916) 558-1700 or via e-mail at mailto:Mark.Horton@cdph.ca.gov.






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