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Monday, Nov 9, 2009
California braces for a gay-marriage initiative showdown.
Oct 28, 1999 | The new century's first major brawl at the ballot box will occur in California, where in March voters will rule on a measure that would ban gay marriage. Since the Golden State is often a crucible for political trends, this referendum is expected to be a bellwether for future initiative wars around the country.
Unlike many complex ballot measures, the Defense of Marriage initiative is but a single, simple sentence: "Only marriage between a man and a woman is valid or recognized in California."
Sponsored by conservative state Sen. Pete Knight, the measure is shaping up to be another in the series of multimillion-dollar ballot battles that have been waged in California in recent years, including the polarizing anti-immigration (Proposition 187) and anti-affirmative action (Proposition 209) initiatives that have had profound political consequences inside and out of the state.
Defense of Marriage opponents say the law is unnecessary, since homosexual marriage is currently prohibited under state law, and that the referendum is simply the first step toward a full-scale attack on gay rights.
"Thirty different states have passed this through the legislative process," said Mike Marshall, who is spearheading the campaign against the initiative. "And they're using this as a legal foundation to go into the courts and try to overturn local non-discrimination ordinances, domestic partner ordinances and having states not recognize gay and lesbian relationships."
But Defense of Marriage spokesman Rob Stutsman said the law is simply a preventative measure that was made necessary when President Clinton signed the Defense of Marriage Act in 1996, which created a federal definition of marriage that prohibited same-sex unions and encouraged states to pass new marriage laws. Some states have interpreted this as an opportunity to redefine marriage, Stutsman suggested.
"Vermont had the case argued in their Supreme Court," Stutsman said. "If they give the OK to same-sex marriage, there would be an open question as to whether those marriages would be recognized in California. This measure allows California to avoid those types of redefinitions."
Jon Davidson, supervising attorney of the Lambda Legal Defense and Education Fund in Los Angeles, said that if the initiative is passed, it could tangle the state in a web of litigation.
"It's totally clear that the Knight Initiative is adding a section to the California family code that only a marriage between a man and a woman is valid," he said. "It essentially creates an anti-gay exception to the law that says that marriages in other states must be recognized in California."
The legality of this type of state legislation has not been tested in any state, because no state currently allows same-sex couples to legally marry. But, Davidson said, cases currently before the state supreme courts of Vermont and Hawaii could change all that. "The courts could rule any day and legalize same-sex marriage in those two states."
The federal Defense of Marriage Act essentially said that states should not be required to recognize same-sex marriages from other states. But there is still an ongoing legal debate over whether the federal government has the authority to make such a law. Davidson pointed to the U.S. Supreme Court's overruling of a recent California welfare law that would have provided lesser benefits to people who move to California from other states.
"The court said the law violated right of interstate travel and commerce," Davidson said. "I think there's a similar argument to be made here."
