Some thoughts about the California Marriage Case

Mar 18, 2008

by Leonard Link

Herewith some observations about the California Supreme Court’s marriage decision. . .

In terms of its importance: When/if the court’s decision goes into effect, California will be the third largest polity in the world that has embraced marriage equality by allowing same-sex couples to marry. The largest is South Africa, with a population of almost 48 million, then Spain with about 45 million, then California, with about 38 million, followed by Canada, 33 million, the Netherlands, 16.5 million, Belgium, 10 million, and little Massachusetts, rounding out the list with 6.5 million. (Thanks to Rob Wintemute of the Faculty of Law, Kings College, London, for forwarding an email that prompted me to this comparison.)

When Massachusetts began to let same-sex couples marry in the spring of 2004 in response to the 2003 Massachusetts Supreme Judicial Court ruling, the impact outside of the state was sharply limited by the Attorney General’s interpretation of an old statute forbidding marriage licenses to out-of-staters whose home state would not allow them to marry. As a result of that, and some litigation in the Massachusetts state courts, it seems that the only U.S. residents who have been allowed to marry in Massachusetts are Rhode Islanders (based on a possibly dubious interpretation of Rhode Island law by the Massachusetts courts) and a few New Yorkers who rushed in to marry in 2004 before state government threats to local clerks shut down that process. So we did not see a stream of same-sex couples from around the country flocking to Massachusetts to marry. And, as Massachusetts is a relatively small state, we have not seen a big flood of married same-sex spouses from Massachusetts moving to or traveling through other states and finding themselves in situations where they were trying to get those other states to recognize their marriages. One lesbian couple brought a lawsuit seeking recognition of their Massachusetts marriage in Florida, and were turned down by a federal district judge, citing the federal Defense of Marriage Act and local Florida policies against same-sex marriage. Perhaps a few divorce attempts around the country have followed, but the impact of same-sex marriage in Massachusetts has been mainly confined to Massachusetts.

By contrast, the opening up of marriage in California will undoubtedly have a much larger impact. Read more...