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Vermont gay marriages spark Calif. debate

April 9, 2009 7:36:09 AM PDT
Both sides of the gay marriage ban approved by California voters are debating how Iowa and Vermont's recent moves to allow same-sex unions will affect their state's running legal battle.Gay marriage supporters are particularly interested in the Iowa Supreme Court's ruling, which they hope will sway the California Supreme Court to overturn the ballot measure voters passed with 52 percent of the vote in November.

But opponents say the Iowa decision should have no bearing on the essential issue before the high court: Whether voters have the right to amend California's constitution at the polls.

California's Proposition 8, similar to laws in 29 other states that ban gay marriage, was the most expensive ballot measure in the nation, with $83 million poured into campaigns on either side.

The measure was introduced largely as a reaction to the California Supreme Court's decision in May to legalize same-sex unions. That ruling was extensively cited by Iowa justices in their decision released Friday.

California's highly anticipated ruling on Proposition 8 could come any time before June 3. Some 18,000 gay and lesbian couples were wed in the 4 1/2 months it was legal to do so in California.

Shannon Minter, legal director of the National Center for Lesbian Rights, who led the challenge to Proposition 8 in oral arguments before the California court last month, was jubilant Tuesday after Vermont joined Massachusetts, Connecticut and Iowa as the fourth state to allow gay marriage.

While the other states went through lengthy legal battles, Vermont's approval came when the Legislature overrode their governor's veto.

But Minter said it was Iowa's ruling that was important to California in two ways.

First, the Iowa court stresses "that equal protection is such an essential structural foundation of our system of government" that it can't be left to the ballot initiative process, he said.

Second, he said, Iowa justices adopted the California Supreme Court's analysis of why providing a separate status for same sex couples is inherently unequal.

"It would be very ironic," he said, "if just at the time that other state courts are following the California Supreme Court in holding that only marriage can provide true equality, that California were to backpedal away from that holding."

But the question before the California Supreme Court is not whether it supports gay marriage, said Maggie Gallagher, president of the National Organization for Marriage, which opposes gay marriage.

"I think that the California court might view the Iowa Supreme court decision as reasonable," she said, "but it's not the question before them. It's whether the people of California have the constitutional right to pass Proposition. 8."

William Eskridge, a professor at Yale Law School and scholar on the gay marriage issue, said "the Iowa decision actually relies on the California decision ... I think that both their legal analysis and their unanimity was surely influenced by the California decision, which they lavishly quote."

But, he added, "I don't believe that will influence the Chief Justice and the majority of the court."

During oral arguments before the California Supreme Court on March 6, the seven-member body indicated a wariness to override what Associate Justice Joyce Kennard called the people's "very, very broad, well-established" authority to amend the state's governing framework at the ballot box.

"What I am picking up from the oral arguments is that this court should willy-nilly disregard the will of the people," said Kennard, who was part of the majority in the 4-3 decision that legalized gay marriage in California.

If the court overturns Proposition 8, "it would be devastating to the democratic process and any future initiative or referendum," said Bryan Brown, executive director of the National Organization for Marriage, which opposes gay marriage. He noted that when the California Supreme Court overturned the death penalty, the voters amended the state constitution in 1978 to uphold it.

Evan Wolfson, executive director of Freedom to Marry, a pro-gay marriage group, said the Iowa ruling has given him new hope in California.

"The fact that this decision is so clear and unanimous from the heartland," he said, "is a reminder to the California Supreme Court that the equality in marriage is a civil right whose time has come and whose place is everywhere."

Whatever the court decides, it will likely spark protests and celebration: The oral arguments drew thousands of supporters and opponents to an outdoor plaza in San Francisco, where the Supreme Court's hearing was shown on a big-screen TV.

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