San Francisco's experiment in same-sex marriage may have political consequences and a legal resolution, say campus scholars.
Alan Brownstein, a constitutional scholar in the UC Davis law school, says the issue of same sex marriages will likely be resolved in the courts at some point. "There's a fair chance it could end up in the California Supreme Court," said Brownstein, noting that interpretations of the state's Constitution cannot be challenged in the federal courts unless there is reason to believe the state court's decision violates the U.S. Constitution.
Brownstein said the key case that "opens the door" to gay marriage was 2003's Lawrence vs. Texas in which the U.S. Supreme Court found that all sodomy laws are now unconstitutional and unenforceable when applied to non-commercial consenting adults in private.
But that ruling doesn't equate same sex marriages with sodomy, the key issue in that case, Brownstein said. That is why the marriage issue is more likely to be litigated as a matter of state constitutional law.
He pointed out that both Justice Anthony Kennedy, in his majority opinion for five justices, and Justice Sandra Day O'Connor, in her separate concurring opinion, took pains to demonstrate that overturning a law that sent consenting adults to jail for their private sexual behavior did not imply recognition of same-sex marriage, despite Justice Antonin Scalia's statements to the contrary.
"It opens the door intellectually in acknowledging that government antipathy toward homosexual behavior or orientation is unwarranted," he said, "but because of what O'Connor and Kennedy wrote in Lawrence vs. Texas that door doesn't open too broadly -- at least not at the federal level."
Critics of gay marriage often point to Proposition 22, passed by California voters in 2000, as one reason why San Francisco's actions may be illegal. Brownstein, however, says that initiative is not in fact part of the California state Constitution. "That's an initiative but it didn't amend the state constitution," he said. "It was, certainly, a vote of the people, though."
Brownstein questions whether the city/county of San Francisco, the administrator of state law in this case, is the proper authority to file lawsuits on behalf of the same-sex marriage proponents. Typically, individuals file legal actions when they perceive a wrong has been committed against them, he noted.
In the end, he said, the argument for same- sex marriages may invoke California's constitutional right to privacy provision as well its equal protection mandate. "The right to marry is often protected as part of the right to privacy," he said.
Last week, President George W. Bush waded into the fray, announcing his support of an amendment to the U.S. Constitution stating that marriage is only between a man and a woman.
Political science professor Robert Huckfeldt estimates that the issue of same sex marriages is not likely to help Democrats at the national levels in the upcoming Presidential election.
"Public opinion polls show widespread resistance to gay marriage," said Huckfeldt, who specializes in dynamics of political communication and deliberation among citizens. "Many Democrats thus end up in a position where they want to support the gay community without offending the majority opinion that is opposed to gay marriage, and it can be a difficult balancing act."
However, he says that Republicans, including Bush, also face potential problems, especially if they appear to "overplay" the issue and seem to be milking it for votes. And passing a constitutional amendment is a "formidable task," he added, "as the founders intended."
To adopt an amendment, two-thirds of the U.S. House and Senate would have to ratify it, and then three-fourths of the state legislatures would have to approve it. It's also fraught with political ironies, Huckfeldt said.
"It is not clear that either proposal or ratification will be an easy task," he said, "while it is somewhat unnatural in a political sense for Democrats to argue that these sort of tasks should be left for state governments."
Half of California voters oppose same-sex marriage, but even more oppose a constitutional amendment to ban such unions, according to a Field Poll released Feb. 25.
The statewide poll found that 50 percent of those surveyed disapproved of same-sex marriage, while 44 percent are in favor. When the Field Poll first asked the question 27 years ago, only 28 percent voiced approval and 59 percent were opposed. In the years since, there has been a steady but slow rise in acceptance.
Elizabeth Freeman, an assistant professor of English who studies a wide variety of cultural issues -- including gay and lesbian marriages, says it doesn't matter to most gays and lesbians what society thinks of them.
"At this point, even the most mainstream of national lesbian, gay, bisexual, transgender and queer groups is seeking freedom and equality, not mere tolerance," she said.
"Lesbians and gays cannot and will not diminish their sense of entitlement to equality out of fear of hate crimes and discrimination, which will be used to intimidate us no matter what we do," she added.
Freeman says marriage equality is a reform, but not a radical one.
"Marriage is hardly a radical institution," she said. "Of course gays and lesbians should have their marriages recognized if straight people do. But imagine a world in which domestic couplehood was not the main criterion for over a thousand governmental benefits, rights, and freedoms, and these were just given to citizens."