TOPICS > Politics

Calif. Gay Marriages Raise Legal Questions Nationwide

June 18, 2008 at 6:40 PM EDT
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The laws governing marriage nationwide are a complicated state-by-state patchwork, with little or no interstate recognition. The recent ruling in California legalizing same-sex marriage adds another layer of complexity to the legal landscape. Legal experts examine these questions.
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JUDY WOODRUFF: Finally, Ray Suarez looks at the shifting legal landscape surrounding same-sex partnerships.

RAY SUAREZ: With thousands of couples expected to marry in California this summer, it now becomes the second state, along with Massachusetts, to legalize same-sex marriages. It also adds another layer of complexity to a patchwork quilt of laws governing marriage nationwide.

In New York, Governor David Paterson has said his state will soon recognize same-sex marriages performed elsewhere. And eight states and the District of Columbia allow for civil unions or provide domestic partnership benefits.

But 26 states have constitutional amendments banning same-sex marriage, and every state other than California or Massachusetts currently have other laws barring same-sex marriages.

To understand the legal questions this raises, we turn to two professors of law: John Eastman, dean of the Chapman University School of Law in Orange, California; and David Cruz of the University of Southern California School of Law.

California decision will ripple

RAY SUAREZ: Professor Eastman, this being the largest state in the union, just by changing its own law does it immediately change the family law legal landscape across the country?

JOHN EASTMAN, Chapman University: It does not, but the implications are different than the Massachusetts case of five years ago. Massachusetts had an in-state residency requirement that California does not have.

And that means there will be an incentive for people to travel to California from across the country and then return to their home states in much larger numbers than existed just with the Massachusetts decision.

RAY SUAREZ: Well, doing what? If 26 states say that they won't recognize it -- in fact, the Defense of Marriage Act tells them that they're perfectly allowed not to recognize those marriages.

JOHN EASTMAN: Well, they are, if the Defense of Marriage Act is constitutional, if it's not challenged in the courts, if various state prohibitions are not challenged in the courts. And I fully expect in very short order that those things will all be challenged in the courts.

And then the state courts and, ultimately, the federal courts will have a big issue on their hands. Are they going to uphold those statutes?

Remember, California had a statute, as well, Proposition 22, adopted by roughly 70 percent of the people in this state just eight years ago. But the Supreme Court struck that down last month.

And, you know, there will be a big push in many of the other states to strike down their statutes and even constitutional provisions, as well.

RAY SUAREZ: Professor Cruz, how do you see the change in law in California affecting the ongoing debate nationwide?

DAVID CRUZ, University of Southern California: I think Professor Eastman is right that there's not going to be direct, immediate legal impact on the other states, but it will lead to the raising of further issues.

And it's also going to lead to the raising of consciousness about the issue. One of the ways that we're going to see impact from the California Supreme Court decision is that same-sex couples are going to get married in California, and they're either going to return to their home state somewhere else in the country, or they may be California residents whose job transfers one or both of them to a new state.

They're going to go there and because, as Dean Eastman noted, there are not residency restrictions on California marriage, we're going to see many more of these married same-sex couples living in various states.

Even though many of those states will not, at the beginning at least, recognize their legal marriages, they're going to be holding themselves out as married in the communities, and people are going to see that their co-workers and their neighbors are living in these relationships.

And that's going to affect how they're going to view the issues. It's no longer going to be an abstraction that it was at the time that these states passed their own state's sort of defense-of-marriage laws. It's going to be an issue about real, living couples who they know.

Corporations drawn into the issue

RAY SUAREZ: And, Professor Cruz, have we totally come to grips with what it will mean to corporations that have operations in many different states, maybe headquartered in one, but doing business in states with various laws regarding partnership?

DAVID CRUZ: No, although, to some extent, that's a problem that's not different in kind from what we've seen in the past, same-sex couples have for a long time been used to having to deal with the fact that most jurisdictions in the U.S. and the world do not allow them to marry civilly.

But as we've seen more laws like Vermont's civil unions law, adopted in the year 2000, marriage laws in Massachusetts in 2004 going into effect, and now California's decision, there's going to be a bigger question for more corporations.

And they're going to have to decide, are we going to recognize all the marriages that our employees have entered into, if they did it in California, if they did it in Massachusetts, and treat them the same as other married couples, whether or not the state they might be operating in would give them legal recognition?

RAY SUAREZ: Professor Eastman, you agree with that, that corporations...

JOHN EASTMAN: Well, I do.

RAY SUAREZ: Go ahead.

JOHN EASTMAN: Yes, there was a case up in San Francisco a number of years ago now where the San Francisco government tried to use its authority over the airport to force any airline that wanted gates at the airport to adopt a worldwide policy consistent with San Francisco's view on same-sex marriage or same-sex partner benefits.

There are huge dormant commerce clause issues that result from such a stance, because California would then essentially be imposing its policy judgments on a number of other states and, indeed, other nations that may not share that policy judgment. And so this is going to be work its way out in the courts for a long time.

But there's another issue that's coming down the pike and I think is going to be the more immediate place of contention, and that is when these couples that have been married in California seek public accommodations.

There are cases now popping up around the country wanting to get a small-town photographer to photograph the same-sex wedding, and the photographer politely declines because it's not consistent with her moral belief system, and then gets sued or brought up on charges before the various human rights commissions for discriminating.

And these cases are going to force a confrontation between the newfound right to same-sex marriage and long-held religious rights to have, you know, your views of faith, whether it's an orthodox Jewish university in New York, Yeshiva University, that had a ban on same-sex couples living in their married dormitories and were held that they couldn't do that, or a Methodist meeting hall in New Jersey that was told they had to open the meeting hall to a same-sex or a domestic partners' commitment service.

These things are going to force a confrontation with deeply held religious beliefs and explicit text in the federal Constitution, the freedom of the free exercise of religion.

RAY SUAREZ: Professor Cruz, do you agree that that will happen even in states where there's no law allowing same-sex marriage or recognition of those partnerships?

DAVID CRUZ: Well, before that could take place, what you would need is some law that purports to restrict, say, a university or a theater or a restaurant from discriminating against gay couples or against married same-sex couples. And in most states of the union, you won't find such a law.

So certainly it's possible that in some states you'll see such litigation. But, again, that's not new. Conflicts between anti-discrimination laws and sincerely held religious beliefs are very old in this country.

And, indeed, we saw, during the aftermath of the adoption of more laws against race discrimination, we saw people advancing religious arguments for why they needed to be allowed to discriminate on the basis of race in the face of these anti-discrimination laws.

We've also seen religious reasons why they've said we need to be able to discriminate on the basis of sex so that we can refuse to hire a mother with young children, even though we would hire a father with young children, because of our religious beliefs about how they should be conducting their lives.

So the sorts of problems aren't new, although, given the magnitude of the California population, in conjunction with the lack of residency restriction on the marriage laws, we are likely -- I would agree with Dean Eastman -- to see more of these cases.

Redefining marriage in general

RAY SUAREZ: Professor Eastman, in recent decades, states chose to recognize marriages that they wouldn't even allow to be performed, technically speaking, in their own states, if people were coming in from out of the state.

But is this new regime, with the largest state in the country allowing same-sex marriages, a higher contrast, no longer just close relations marrying, perhaps, that might be prohibited in one place and allowed in another, but a whole category of marriage that will force some sort of showdown at some point down the road?

JOHN EASTMAN: Well, I think you're exactly right. I think one of the bones of contention here is, you know, what does it hurt your institution of marriage to allow this expansion or redefinition of marriage for others? And that will be the point of contention.

Those that support same-sex marriage have, in more candid moments, said what we're seeking to accomplish here is really the decoupling of the sanctity of marriage from the procreation function that made it a societal institution and making it just a matter of contract.

Of course, if you do that, you establish an entirely different institution than existed before. And this is no longer a state as a matter of policy, you know, letting a third cousin that married legally in one state come in and continuing to recognize it. This is a rather transformative thing that's going on.

And it goes right to the heart of some deliberate and very contentious policy judgments that have been made by the states.

And, you know, I don't know how this is going to play out in the law, but one thing is for certain: Because the courts have weighed in now, the courts have got a lot of cases coming down the pike that they're going to have to decide some very basic policy judgments towards.

Issue evolving with time

RAY SUAREZ: Professor Cruz, in the case of interracial marriage, there was a patchwork quilt similarly across the United States. It eventually gave way to one uniform rule. Do you see that happening this time?

DAVID CRUZ: I do, eventually. And I think that many people do. Even people who are devoutly devoted to keeping marriage as just a legal institution available to male-female couples have suggested that they see eventually themselves losing that campaign. And part of that is because of shifts in public opinion.

So, in contrast to the days when we saw all of the laws in various states barring recognition of interracial marriage, today we have specific statutes that would override common law in states that might have allowed recognition the way we see recognition, for example, of first-cousin marriages, even if the states won't perform first-cousin marriages themselves.

But it's the process of same-sex couples living their lives, married, and getting to know their neighbors that will lead to changes in attitude.

We saw such changes in attitude in Massachusetts in just the four years since they've been marrying same-sex couples there. And all of the opinion polls consistently show that the younger the voters you look to, the greater the support there is for equal marriage rights.

RAY SUAREZ: Professor Cruz, Professor Eastman, gentlemen, thank you both.

DAVID CRUZ: Thank you.

JOHN EASTMAN: Thank you.

JUDY WOODRUFF: And the discussion continues online, where John Eastman and David Cruz will take your questions on the legal debate over same-sex marriage. To participate, go to PBS.org.