Rosendall discusses CA marriage victory, implications for D.C.
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Rosendall discusses CA marriage victory, implications for D.C.

From: Rick Rosendall
Sent: Thursday, May 15, 2008 8:10 PM
To: GLAA Members
Subject: To Thee, Old Cause!


You have probably seen the happy news on marriage equality from California. Pick your favorite California song to sing in celebration—maybe “San Francisco,” or “I Wish They All Could Be California Girls.” The early reactions and quotes from the court decision indicate that this is the strongest and clearest of rulings. GLAA joins in congratulating the victorious litigants in this case and all who helped them.

For details on today’s ruling, go to Equality California’s website at:

Here are some highlights from the ruling:

“In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.”

“In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.”

“Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.”

“Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs.”

By way of contrast, here is a reaction to the ruling by leading SSM opponent Maggie Gallagher, president of the Institute for Marriage and Public Policy: "California's supreme court has just ruled that the 62 percent of Californians who voted for marriage as the union of husband and wife are just bigots. But thanks to the 1.1 million Californians who signed petitions to get a constitutional amendment on the ballot this November, activist judges will not have the last word in California, California voters will. Most Americans understand that marriage is not bigotry. It is common sense -- unions of husband and wife have a unique status in law and culture because they really are different from other kinds of unions including in this way: they are uniquely necessary because they are the unions that both make new life and connect those children to their own mother and father."

I have sent an email to Ms. Gallagher saying, “It is breathtaking how you and your allies manage to turn rulings like today’s into something negative, when in fact this ruling clearly takes nothing away from anyone—it only recognizes rights for couples who have not enjoyed them previously. And this is a happy day for those of us who uphold the traditional American values of equality and the right to the pursuit of happiness.”

As it happens, the California court wrote much the same thing: “While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children.”

Permit me to offer some initial thoughts on the implications of the California ruling for the District of Columbia. Someone already sent a note today saying that after this ruling we cannot put off much longer the question of how to deal with same-sex marriages (SSMs) from other jurisdictions. This colleague brought up the 2004 letter from former D.C. Attorney General Robert Spagnoletti, drafted for then-Mayor Anthony Williams, addressing the question of whether the District can and should recognize out-of-state SSMs. That letter was never released, and some have made a big issue out of demanding that Mayor Fenty release it (including in a post on the Blade Blog this afternoon by editor Kevin Naff).

I fail to see why same-sex couples coming to DC after marrying in California pose any greater legal crisis for DC than such couples arriving from Canada, the Netherlands, Belgium, Spain or South Africa, all of which have same-sex civil marriage. To be sure, any same-sex married couple encounters a problem whenever they cross a jurisdictional boundary. One minute you’re legally married, the next minute you’re strangers under the law. It is an outrageous and profound injustice, an injustice I feel acutely as a member of a binational couple. But no matter what we do here in DC, same-sex couples are going to have that problem in this country until we get our version of Loving v. Virginia (the landmark 1967 Supreme Court ruling that overturned state anti-miscegenation laws). Our push for marriage equality in the District should be proactive and strategic, not reactive.

In any case, the Spagnoletti letter is of no more than historical interest at this point. It is several years old. It is an opinion written by a previous attorney general for a previous mayor. The issues raised in it are still of interest, obviously, but if we want DC to make a decision on whether it can and should recognize out-of-state SSMs without further legislation by the DC Council, then we should seek an opinion from the current AG. Given that the prevailing policy on SSM here was stated in the court ruling in the Dean & Gill case in the 1990s—a ruling that went against us—it is hard to see how we get around that reality short of new Council action. The push for a ruling of this sort amounts to an effort to get SSM via the back door. Given the ability of Congress to legislate directly for the District as it pleases, we might as well go in by the front door by passing SSM legislation when we are ready to do so. The sense I have from conversations with knowledgeable allies in this cause is that this year is not the time to take that step.

Incidentally, in light of Kevin Naff’s aforementioned blog entry, those of us who have been working in the trenches for years to advance legal protections for same-sex couples in the District would appreciate it if those with megaphones who share our goal of equality would avoid trashing us as barriers to progress if our judgment on the best strategy for getting there differs from theirs—assuming they have actually thought about strategy instead of simply demanding everything they want immediately. Hey, folks, I am not getting any younger myself, and I don’t want to wait another decade or two to marry my partner. But wanting is not the same as having. As I have said before, this struggle is not a sprint but a marathon, and we all have a lot of work to do to reach the goal. We have seen quite enough self-righteous grandstanding.

Given DC’s unique vulnerability to Congress, we would be wise to wait for the results of the coming election before deciding our next steps. We also will want to keep a sharp eye on the U.S. Congress, which has been bipartisan in its opposition to marriage equality even as it has defeated the anti-gay Federal Marriage Amendment. And there is likely to be a ballot measure in California attempting to overturn today’s ruling. It is gratifying that Governor Schwarzenegger said today, "I respect the Court's decision and as Governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

Our California allies will need our support. Please use the link above to visit Equality California’s website. There will undoubtedly be more information forthcoming from them and others on how we can help prepare for the fight ahead. As for tonight, I will raise a glass and echo the words of Walt Whitman: “To Thee, Old Cause!”

Rick Rosendalld
Vice President for Political Affairs
Gay and Lesbian Activists Alliance of Washington, D.C.

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