Saturday, May 31, 2008

SSM Troll to See Legal Battles

In what may well be a multiple pun, Bay Windows editors seem to have had a bit of fun with two very serious subjects. On this week's front page, a picture of the AIDS walk, an accompanying article about the ongoing epidemic, and tombstoned headlines Legal groups warn: don't rush into lawsuits with Far from the finish line.

That's fair enough and three areas where folk have quite a way to go.

The California same-sex marriage ruling came with several legal lampreys sucking on its sides. The Supreme Court there ordered marriage equality to begin in a month (bumped a weekend to June 17th, the last day it has to rule on a motion to extend that). Anti-marriage equality organizations have filed to extend implementation until after a November ballot initiative to put a DOMA definition in the state constitution. Next, ten GOP state attorneys general filed a friend of the court brief supporting that plea. Everyone now is atwitter wondering if hundreds or thousands of couples marry before November and then the amendment passes, what happens to their marriages which were legal at the time?

I must be daft, visionary or both. My first thoughts were whether the highest court in that state would deal with the constitutionality of such an amendment.

Predictably, the Bay Windows legal piece stresses patience and letting the GLBT usual suspects tell the nation what to do or not. This has happened in several states with gay-rights and marriage equality rulings or legislation.

Not everyone salutes and bows. There have been some lawsuits by the impatient. Some are favorite failure citations by the likes of National Center for Lesbian Rights (NCLR) Legal Director Shannon Price Minter. For one, he points to a 2004 challenge to the federal DOMA by attorney Ellis Paul. The suit asked that Florida recognize two women legally married here as spouses. A federal court there denied that. Minter frequently says that the results "were cited against us in all of the state marriage cases where we lost."

Bay Windows also quotes Lambda Legal's Legal Director Jon Davidson as fearing more bad precedent. Of course, those renegades who want to stage raids and not wait years or decades are not bound by what the big rights groups demand. By losing, they may slightly hamper advances. It is very unlikely that they will cause serious damage.

However, there is a possibility that the other side may force related issues for better or worse (where have I heard that before?) with the California instance. Consider:
  1. In 2006, a ballot initiative changed family code to insert one-man/one-woman wording in marriage statutes.
  2. Twice since, the legislature has passed same-sex marriage laws, twice the governor has vetoed these, saying it was for the courts to decide, and twice there were not enough votes for a veto override.
  3. Lower courts ruled in favor of SSM and against violations of equal rights, leading to the case before the Supreme Court there.
  4. That court struck down the statutes defining marriage in DOMA fashion for marriage.
  5. A drive is underway and likely to be successful to put that ballot initiative for a DOMA-style amendment on the November ballot.
  6. An anti-marriage equality group has asked the court to delay SSM implementation until after the election
  7. June 17th is one day after the last day for the court to delay and thus is the day for SSM to begin.
  8. The state AG and the governor will not fight the implementation, leaving the anti forces on their own and with questionable status to bring a suit.
  9. Following the court ruling that voided the family code marriage section, the amendment initiative may require resubmission with new signatures to reflect that it does not change any existing laws.
With all of that, there is likelihood:
  • The Supreme Court will not delay implementation.
  • Many homosexual couples will start marrying on June 17th.
  • Voters in November include many younger ones who have no problem with SSM and voters in general are much more hesitant to remove existing civil rights by ballot than prevent liberties from starting.
  • The anti folk will fail at any appeals to the state Supreme Court.
  • They will move their drama to federal courts, or try to do so.
California is the bigger, much bigger, troll under the bridge. Massachusetts has about 6 million residents and California about 36 million (highest). Even though legal SSM here has not caused rampaging herds of homosexual couples spreading legal discord throughout the nation, the anti folk are convinced, yet again, that California will be that disaster they predicted.

The fun part at the moment is the increasingly obvious swing to the anti folk being on the defensive on this. People heard that tired little ditty Gay Marriage Brings Chaos! so often that they know all the words. Yet it has been so wrong so often that few sing along or even listen any more.

If they lose the November amendment vote, they are pretty much washed downstream. They'd have to look to the nearly impossible, a federal law taking marriage regulation and definition from the states.

Unfortunately, we remain a relatively socially conservative nation. Getting to full equality is a decade or more off. Victories in gigantic states will not convince the others to admit their blunders of saying they are for equality while passing anti-SSM laws and amendments. At least when it comes time to correct those, they'll be able to blame the retired politicians.

For more teasers on this area, go to:

Do nose around at the Leonard Link. There, law professor Arthur S. Leonard is the most insightful analyst around. From May 16th, he has run a great series on the subject.

So far, I haven't seen any judgment on my question about whether the state high court could or would overturn the results of a November ballot initiative that conflicts with their recent ruling. Californians love their brutal form of populism in the form of initiatives. I think its a solid bet that the court would not pick that fight, but wait for a law suit challenging the amendment.

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Charlotte Robinson said...

Nothing is easy as we well know in MA. When the Massachusetts State Supreme Court ruled to legalize gay marriage in 2003 the towns & cities were given a few months until May 17, 2004 when gay marriage would go into effect. Of course Romney & his cronies tried everything to stop it but failed. Even after gay marriages were performed they tried to get an amendment on to the ballot until June 14th, 2007 when it was finally defeated in the State House. For those who are still uncomfortable with this check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue:

John Hosty said...

Well said as always in your articles here.

I wasn't aware you now have celebrities blogging here! Isn't that last comment from Charlotte Robinson, the Emmy Award winning producer?

massmarrier said...

You make me chuckle. She's no fool and recognizes a chance for promotion whenever it appears. We could learn from her.