February 2004
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Day February 14, 2004

Same-Sex Marriage in California and Prop 22

By yesterday afternoon, 665 same-sex marriages occurred in San Francisco’s City Hall, with still more licenses issued.  This morning, 300+ people were apparently lined up to secure marriage licenses.   Of course, it’s unclear whether these marriages will “stick” because of Proposition 22, passed by a wide margin (63%) in 2000.  Prop 22 changes California law to read:  “Only marriage between a man and a woman is valid or recognized in California.”  

As Kevin Drum pointed out this morning, the law is crystal clear on this point, and at the current time, all of the marriage licenses being issued by Gavin Newsom in SFO are technically in violation of Prop 22.  Clearly, this event is a move on the part of Newsom and the SFO community to challenge the constitutionality of Prop 22.  

A constitutional challenge shouldn’t be too difficult, given the following from California’s Constitution:

ARTICLE 1 Section 7:
(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

Of course, there’s nothing that says the State Supreme Court will exercise judicial review and declare Prop 22 void.  And this is a pretty dangerous move for Newsom, since although his motives are laudable, he’s technically violating his oath of office to uphold the law.  Civil disobedience is great, but our elected officials practicing CD is a stickier issue.  The counter-attack, when it comes, may focus considerable wrath on Newsom, costing him his job.  

One also wonders how this situation will affect the chances of a Federal amendment.  As I’ve previously written, demographics would seem to suggest that a Federal amendment wouldn’t find enough support to pass, but I have to wonder if enough publicity might stir the hornet’s nest and cause folks who oppose same-sex marriage but don’t feel strongly to mobilize.  

I strongly oppose constitutional or statutory bans on same-sex marriages.  Equal protection means that the same privileges and responsibilities have to apply to everyone.  But I think we need to be careful with strategy, careful with tactics, in fighting to preserve equal protection.  Constitutions are hard to change, but not impossible.  And while the repeal of Prohibition demonstrates that the damage is reversible, it’s even harder.  While I support the folks in SFO that are making a dramatic statement about equal protections and personal freedoms, I’m really hoping this doesn’t backfire.