Gay marriage is on a roll

06/27/2013 12:00 AM

09/30/2013 3:30 PM

The U.S. Supreme Court's historic actions Wednesday on same-sex marriage – which included declining to rule on California's voter-approved ban on gay marriage, on technical grounds – leaves California poised to become the 13th state where gays and lesbians can legally marry.

From Los Angeles to San Francisco to Sacramento and beyond, the state's gay and lesbian community celebrated the court's action as a victory.

As the day progressed in the heart of midtown Sacramento, outside the LGBT Center on L Street, a bride-to-be in full wedding garb waved a sign, "Available Now!" A young man sported a T-shirt that read, "Dudes Marry Dudes. Get Over It." Motorists honked their horns in support.

And Gov. Jerry Brown told California's 58 counties to prepare to issue marriage licenses as soon as an appellate court stay is lifted.

But opponents of same-sex marriage vowed to continue their fight.

What form that might take in California was unclear. Folsom attorney Andrew Pugno, author of Proposition 8, the 2008 measure that banned same-sex marriage, said in a telephone news conference that his legal team is assessing options for future litigation.

"I realize that's not what many of you would like to hear," he said. "But we won't know for some time, because we're analyzing this."

Even so, same-sex marriage advocates and several legal experts agreed that the court's actions Wednesday make same-sex marriage inevitable in California.

The state was on the cutting edge of cultural change in 2004, when gay marriages were briefly allowed in San Francisco. Then came Proposition 8 and the ensuing five-year legal battle.

"California has been a leader in protecting civil rights in the LGBT community in every area except marriage rights," said David Codell, legal director of the UCLA Law School's Williams Institute, which researches gender identity law.

"Proposition 8 will ultimately be seen as a temporary but grievous blight on California's record of protecting LGBT people."

The Williams Institute estimates that the Proposition 8 decision will help pave the way for marriage for 1.1 million gay and lesbian Californians – 200,000 of whom are already in same-sex partnerships.

When California is added to the list of states allowing same-sex marriage, according to institute data, more than one-third of the American public will live in states where they have that right.

While 37 states expressly forbid gay marriage, surveys show that public opinion has shifted over the past few years. A new Pew Research Center study indicates that 72 percent of people across the country consider the legalization of gay marriage inevitable. And a recent Field Poll showed that 61 percent of California voters support same-sex marriage.

A 'messy' decision

Legal observers consider the court's ruling on the federal Defense of Marriage Act both sweeping and clear: Led by Justice Anthony Kennedy, the court determined it was unconstitutional for the federal government to deny benefits to same-sex couples who are legally married.

In contrast, the immediate impact in California on the court's refusal to rule on the constitutionality of Proposition 8 is not as straightforward.

Scott St. John, a 50-year-old banker who is raising three daughters from a former marriage with his partner, Russell Clifton, in West Sacramento, said the rulings left him with mixed emotions about the future of same-sex marriage in California.

The court decision "left things messy," St. John said. "We're thrilled about the DOMA decision, but we're still holding our breath as to whether proponents of Prop. 8 will file another legal challenge."

The progress of the case through the courts has been complicated.

State officials have long refused to defend Proposition 8 in court. In stepped Pugno, lead counsel Charles Cooper and co-counsel Austin Nimocks of Alliance Defending Freedom, who unsuccessfully argued the case in lower federal courts before appealing to the Supreme Court.

The court on Wednesday held that they were not legally entitled to do so.

Pugno and his team have 25 days to ask for an appeal. They insist that because the court's ruling vacated the appellate decision, California is required to enforce Proposition 8.

"California law requires the state to enforce the proposition until a federal appellate ruling declares Proposition 8 unconstitutional," said Pugno, "and there is no appellate decision now."

Several legal experts interviewed disagreed, saying that the courts have consistently rejected that argument. They said the law Pugno is referring to applies only to voter-approved statutes, not constitutional measures such as Proposition 8.

More than 18,000 same-sex marriage licenses were issued in California during the five-month window when it was legal in 2008, before voters passed Proposition 8.

The measure was ruled unconstitutional by U.S. District Judge Vaughn R. Walker in 2010, a decision the 9th U.S. Circuit Court of Appeals upheld. However, same-sex marriages have been on hold while proponents of the initiative appealed.

With the 9th Circuit opinion vacated by the Supreme Court's actions, Walker's ruling stands as the final court decision.

In a letter Wednesday to county clerks, the state Department of Public Health said "same-sex couples will once again be allowed to marry in California." However, the letter cautioned clerks in bold type to issue no marriage licenses to gay and lesbian couples as long as the appellate court stay remains in effect.

The 9th Circuit said Wednesday that it anticipates a wait of 25 days or more before it takes action.

Even with Brown indicating the state's readiness for same-sex couples to walk the aisle, questions remained. One roadblock could arise, legal experts said, if individual county officials refused to perform same-sex marriages.

Attorney General Kamala Harris warned against such action in a tweet Wednesday afternoon: "If a California county decides to violate the law and not enforce this injunction, California will take legal action."

Others have suggested that Walker's ruling rightfully should apply only to the plaintiffs in the case, a handful of couples in Alameda and Los Angeles counties, and not to same-sex couples throughout the state.

"The other side will try to make that argument, and they'll lose," said McGeorge School of Law professor Larry Levine.

"Are we really going to go through this again? The attorney general's office will interpret Walker's decision as gays and lesbians being able to marry. There will be some litigation. The other side can delay it, but not for long."

Plans for a wedding

For Malissa Rogers, 26, the Supreme Court rulings mean that she can finally look forward to planning a wedding with her girlfriend of four years, Kyra Kekahu.

Rogers, of Citrus Heights, had been waking early each day this week to check SCOTUSblog for clues as to what the Supreme Court might do.

"This morning I woke up my girlfriend and said, 'DOMA is gone! DOMA is gone!' " said Rogers. "I started crying. I couldn't help myself. I didn't think it would happen in my lifetime."

Rogers said she and Kekahu will marry at the first opportunity.

"I don't care if I have to wait in line with 100,000 other people, I'm getting married as soon as I can," she said.

Not everyone greeted the news with happiness. In south Sacramento, Laurette Elsberry, 74, said she is disturbed by what she views as a continuing erosion of moral and family values in America.

"It's just heartbreaking that a certain group of people – liberals, or revolutionaries if you will – are trying to overturn thousands of years of the traditional institution of marriage," said Elsberry.

"How can any society continue to exist if you don't have the natural union of a man and a woman? Children are the basic reason for marriage, and people are trying to throw that all away."

She believes the push for gay marriage represents "persecution of Christians and people who do not share the same belief system" as proponents of same-sex unions.

"I've had people try to tell me that I'm a hater and a bigot," she said. "I'm not. God will be the ultimate judge of all of us."

Across the street from the west steps of the Capitol, where a rally took place Wednesday afternoon, a small band of protesters taunted the celebrants, carrying signs that read "God Has Ruled on Marriage" and shouting into a bullhorn.

"God is angry at this state and this nation, and sooner or later his wrath is going to come down!" one of the protesters said.

Scores of police officers on foot and bicycle were poised for possible intervention throughout the afternoon. But for the most part, the crowd of more than 3,000 was orderly and sedate, listening to speakers including John A. Pérez, the first openly gay speaker of the state Assembly.

Several members of the clergy also took the microphone.

"We have overcome, have we not?" the Rev. Doretha Williams Flournoy implored the crowd, as the audience cheered loudly.

And rainbow flags were everywhere, including a giant flag stretched high over the steps.

Back in West Sacramento, the St. John family maintained a new tradition, tracking the fate of same-sex marriage in states around the country on a U.S. map tacked to a laundry room wall.

One day, said St. John, he and his partner will marry.

But in the meantime, he said: "We're coloring in states that legalize gay marriage as they do it. Today we're going to color in the state of California.

"For now, anyway."

Call The Bee's Anita Creamer, (916) 321-1136. Follow her in Twitter @AnitaCreamer.

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