The Response to California's Gay Marriage Ruling: How the Losing Side's Tactics Harken Back to the Fight Over Racial Equality
	By VIKRAM DAVID AMAR
	Friday, Jun. 20, 2008

The Judicial Treatment of Bans on Interracial Marriage During the Civil Rights Movement: Eliminating Second-Class Citizenship

Beginning with the California Supreme Court’s decision in Perez v. Sharp in 1948, and culminating in the U.S. Supreme Court’s ruling in Loving v. Virginia in 1967, courageous judges invalidated longstanding legal prohibitions on interracial marriage for the simple and compelling reason that such prohibitions were part of a racial caste system in which racial minorities were relegated to second-class citizenship in violation of equal protection principles. These cases were part of a larger group of rulings – most notably, the school segregation case of Brown v. Board of Education in 1954 – that reclaimed the central racial equality meaning of the Fourteenth Amendment, which had been ignored for almost a century since its enactment.

Proponents of gay marriage in California argued to the California Supreme Court that the prohibition of same-sex marriages sent a similar message of exclusion, subordination, and second-class citizenship of gays and lesbians. And there is something to this claim. To be sure, the modern treatment of gays and lesbians is arguably distinct from the way racial minorities were treated a generation ago; since same-sex unions were -- even before last month’s ruling -- afforded most if not all the tangible benefits California confers on opposite-sex married couples, the message of exclusion and subordination of gays was less stark than that of racial minorities in the Fifties.

Nonetheless, the California Justices found the analogy largely apt. As the court wrote: “Thus, just as this court recognized in Perez that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior. . . we now similarly recognize that an individual's homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual's legal rights.”

One Response to the California Supreme Court Ruling: Delay Tactics that Echo and Exceed Those Employed in the Racial Equality Struggle

Whether or not the California Justices’ invocation of the racial equality cases was completely convincing, the aftermath of the ruling powerfully conjures up parallels to the civil rights movement of the Fifties and Sixties.

Consider, first, the delay tactic. After the Brown racial segregation ruling, the U.S. Supreme Court had to confront the massive resistance it knew its decision would generate. In the famous Brown II remedial decision, the Supreme Court recognized that “full implementation [of desegregation] . . . may require solution of varied local school problems” and that courts implementing desegregation “may consider problems related to administration.” Nonetheless, the Court warned that “the vitality of [] constitutional principles cannot be allowed to yield simply because of disagreement with them,” and that desegregation must proceed “with all deliberate speed.”

The years that followed Brown saw a tremendous amount of foot-dragging – sometimes for decades -- by many school districts throughout the country. As constitutional scholar Erwin Chemerinsky has observed, “[s]tate officials attempted to obstruct desegregation in every imaginable way.” Indeed, a decade after Brown, the Supreme Court itself commented globally and half-apologetically that “[t]here has been entirely too much deliberation and not enough speed.”

Perhaps unsurprisingly, the losing side in the California gay marriage cases has also tried to employ delaying tactics. One might have expected some arguments for delay in order to accommodate, for example, the time necessary to print up new marriage license forms, etc. Such arguments would be akin to the “administrative” reasons for delay in implementing school desegregation that were asserted in the 1950s.

Yet the same-sex marriage opponents have gone even further, and advanced unprecedented theories for putting off implementation of the California Supreme Court ruling.

Most significantly, gay marriage detractors sought a “stay” of the California Supreme Court ruling (that is, an order that would in effect put the ruling on hold) until state voters in November resolve a ballot measure that would, if enacted, amend the California constitution to prohibit gay marriage. They reason that if the November measure were to pass, there would be much confusion and complexity over the legal status of marriages entered into between now and then, and they cite avoiding this complexity as a reason to proceed slowly. (As I explained in an earlier column, the new measure, even if adopted, might not be as complex as some argue, but I do acknowledge that things might get somewhat messy if gay marriages go forward this summer and the November initiative is adopted.)

Even if the November measure introduces messiness, however, the line of reasoning behind the stay request is extremely dangerous. Note that the California constitution as it exists today, as it is understood by its final interpreter (the California Supreme Court), protects gay marriage. Those who seek a stay thus want to defer implementation of the rights under law that persons currently enjoy, on the possibility that the constitution may itself be changed to take away those rights. But all rights that all of us currently enjoy might be taken away by future action by the voters. Under the reasoning of those who make the stay request, all judicial rulings might be subject to delayed implementation because some unhappy litigants may advance a revisionary legislative agenda in the foreseeable future.

Such reasoning cannot be accepted. Happily, and properly, the California Supreme Court rejected the untenable stay application. Indeed, although the matter was not carefully reported in the press, not a single member of the court – even those Justices who dissented in last month’s ruling on the merits – indicated support for imposing a stay until November.

From Delay to Defiance: The Move to Shut Down Marriages Altogether

A second response by gay marriage opponents also brings back memories of the post-Brown era. After the school desegregation ruling, some jurisdictions simply tried to close down their schools, rather than desegregate them. Prince Edward County, Virginia, shut down its public education system in 1959 rather than comply with a desegregation decree. The case ultimately made it to the Supreme Court, in Griffin v. County School Board, which ordered the schools to reopen, stating whatever “nonracial grounds might support a State’s allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.”

Fast forward almost fifty years. In response to the gay marriage ruling, at least two California counties -- Kern and Butte -- announced last week that they would stop performing all marriage ceremonies altogether. Although they asserted that they simply don’t have the resources to handle the combined number of gay and straight wedding ceremonies requested, officials in other counties say that claim is specious, suggesting that the true motivation behind the cessation of marriage ceremonies may simply be a desire not to comply with the Supreme Court’s ruling.

In this regard, it bears noting that both counties have strongly conservative populations that voted overwhelmingly, eight years ago, for the state statutory ban on gay marriages that the California Supreme Court Justices invalidated in their ruling last month. Moreover, according to press accounts, the Clerk of one of the two counties involved, Kern County, announced her decision to halt all marriages only after her county lawyers told her she could not refuse to marry same-sex couples in particular.

If these two counties do not reconsider their decisions, and if court challenges are pursued, one hopes that the lessons of the post-Brown era will be remembered here as well.

Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.