Same-Sex Marriage: Who Decides -- Calif. voters have, byinitiati ve

[Sanford Levinson]

Unfortunately (given my own views), I find Mark's analysis below
persuasive.  Can it possibly be the case that California could recognize
its own gay and lesbian marriages, but refuse such recognition to
marriages conducted in Massachusetts (between bona fide Mass. residents,
so there is no problem presented by "quickie marriages")?  I remember,
from a long-ago course in conflicts, that states could refuse to
recognize the decisions of other states only when a strong "public
policy" interest intervened.  If California allows gay and lesbian
marriages, it would, I think, be utterly frivolous to make a public
policy claim vis-a-vis Massachusetts, Canada, the Netherlands, or any
other entity enlightened enough to allow such marriages.  So it does
seem to me that the "limited" reading of the California initiative,
though compatible with my own views on the merits, would be recognized
as totally illegitimate were the methodology applied to an initiative
that proponents of gay and lesbian marriage support.  I would love to be
shown that Mark is mistaken in his analysis.
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, September 07, 2005 4:47 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters have,
byinitiati ve



My final post on this topic (at least for today):

 

Suppose we interpret the initiative statute somehow as only prohibiting
recognition in California of out-of-state same-sex marriages. If the
California legislature thus can allow same-sex marriage in California
despite the initiative statute, and if the legislature does so, then
won't the initiative statute then violate the federal Full, Faith and
Credit Clause (FFC)? How could California justify a refusal to recognize
a Massachusetts same-sex marriage, if California would have allowed the
same two people to marry in California? 

 

Thus, to interpret the initiative statute so as to allow the California
legislature to permit same-sex marriage is to interpret it as carrying
within itself the seeds of its own destruction. Such an interpretation
could allow the legislature, without a vote of the people, to invalidate
the initiative statute. I can see no reason for such an interpretation
of a statute that flatly provides that only marriage between a man and a
woman will be valid or recognized in California. 

 

And, finally, the initiative statute provides that "This act may be
cited as the 'California Defense of Marriage Act.' " Note that the
federal DOMA has two purposes: (1) to set forth a definition of marriage
for purposes of federal law, and (2) to give states the right not to
have to recognize same-sex marriages that other states might permit. The
California DOMA has two analogous purposes: to set forth a definition of
marriage for purposes of California law precluding California same-sex
marriages, and to make clear that California will not recognize
out-of-state same-sex marriages. Thus the initiative statute refers not
just to recognition but also to validity. Note that it is the California
Defense of Marriage Act, not the California Defense of the Right of Our
Legislature To Decide Act. It was designed to protect traditional
marriage in California, not to protect the right of the legislature to
determine the nature of marriage.

 

Mark S. Scarberry

Pepperdine University School of Law

 

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