The recent ruling by the California Supreme Court that will allow us to get married has been the subject of much discussion at work and among our friends. At work, a number of us was confused by a story on
CNN.com which had a quote by San Francisco City Attorney Dennis Herrera that said the case could not be appealed to the U.S. Supreme Court.
Here's the section of the story:
A constitutional amendment initiative specifying that marriage is only between a man and a woman is awaiting verification by the secretary of state's office after its sponsors said they had gathered enough signatures to place it on the statewide ballot. The parties cannot appeal to the U.S. Supreme Court, Herrera said, as federal courts do not have jurisdiction over the state laws. "This is the final say," he said.That seemed wrong to me and to a few friends who thought that any case involving constitutional rights could be heard by the Supreme Court. Since Roe v. Wade dealt with state abortion laws and various civil rights cases dealt with state laws that involved racial discrimination, then it followed naturally that gay marriage fit those examples.
As luck would have it, I am taking a business law class right now as part of my MBA program at Pepperdine. Tonight we discussed the topic, and my law professor cleared things up for me. Although the case is over, gay marriage could be overturned by a constitutional amendment vote this November. That part of the case will be done, since appeals won't be heard after that.
However, since many of us will be married between now and then, the topic will not be dead. Most likely what will happen is that a gay couple will be married this summer, then travel to another state where their marriage is not recognized. The conflicting state constitutions can then be challenged in court, and that new case can be heard by the Supreme Court. Ha!
Taking this a step further, if for some bizarre reason, Congress passes a federal Constitutional Amendment against gay marriage, that still isn't the end. That could still be challenged in the Supreme Court. In fact, the Supreme Court already has conflicting parts. Amendments are not absolute handcuffs. It CAN overrule them!
For example, Article 4, Section 2, Clause 3 of the Constitution is the
Fugitive Slave Clause. It says that if a slave escapes from a slavery state to a non-slavery state, then the non-slavery state must return the slave back to the slavery state. But later in 1865, the
Thirteenth Amendment was passed, which prohibited slavery on a national level.
So you see, we're not totally screwed if they pass that amendment in November. It will just take longer.
