The California Supreme Court Decision and the

Journal of Gay & Lesbian Social Services

ISSN: 1053-8720 (Print) 1540-4056 (Online) Journal homepage: http://www.tandfonline.com/loi/wgls20

“It's not just about marriage; it's about antidiscrimination”: The California Supreme Court Decision and the Future of Same-Sex Marriage in the United States Peter A. Newman To cite this article: Peter A. Newman (2010) “It's not just about marriage; it's about antidiscrimination”: The California Supreme Court Decision and the Future of Same-Sex Marriage in the United States, Journal of Gay & Lesbian Social Services, 22:1-2, 183-190, DOI: 10.1080/10538720903332602 To link to this article: http://dx.doi.org/10.1080/10538720903332602

Published online: 02 Feb 2010.

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Date: 30 January 2016, At: 00:56

Journal of Gay & Lesbian Social Services, 22:183–190, 2010 Copyright © Taylor & Francis Group, LLC ISSN: 1053-8720 print / 1540-4056 online DOI: 10.1080/10538720903332602

“It’s not just about marriage; it’s about antidiscrimination”: The California Supreme Court Decision and the Future of Same-Sex Marriage in the United States

Downloaded by [46.105.152.68] at 00:56 30 January 2016

An Interview with Matt Coles, ACLU Lesbian, Gay, Bisexual, Transgender and AIDS Project PETER A. NEWMAN University of Toronto, Ontario, Canada

The equal right to marry for same-sex couples in the United States has garnered increasing public support over time, with a number of state-level laws passed and others currently in contention. Beyond being a couples’ issue, arguments in support of legally recognizing same-sex marriage strike at the heart of LGBT civil rights and antidiscrimination efforts. This interview with Matt Coles, a leading American Civil Liberties Union (ACLU) attorney who has spearheaded a variety of LGBT rights challenges for more than two decades, reveals the past trajectory of legal battles to recognize samesex marriage as well as strategies for moving forward. As Mr. Coles says of the fight for legal recognition of same-sex marriage, “We can make this into the engine that destroys most of the discrimination.” KEYWORDS same-sex marriage, California, LGBT, discrimination We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples. (In re Marriage Cases, p. 7; cited in ACLU, 2008)

Address correspondence to Peter A. Newman, University of Toronto, Factor-Inwentash Faculty of Social Work, 246 Bloor St. W., Toronto, ON M5S 1A1, Canada. E-mail: p.newman@ utoronto.ca 183

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On May 15, 2008, the California Supreme Court ruled that the state may no longer grant the right to marriage exclusively to heterosexuals, which thereby prohibits same-sex couples from legally recognized marriage. According to Director of the American Civil Liberties Union (ACLU) Lesbian, Gay, Bisexual, Transgender and AIDS Project Matt Coles’ analysis, the ruling has two important implications. The primary significance of this decision, according to Coles, is not in expansion of the right to marry per se; rather, it is in the court’s ruling that sexual orientation does not constitute a legitimate basis for discrimination, which has numerous implications outside of relationship recognition. As stated in the Court’s decision: Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation—like a person’s race or gender—does not constitute a legitimate basis upon which to deny or withhold legal rights. (ACLU, 2008, p. 7)

Another important implication of the decision is the issue of portability, although with some limitations. Coles explained: It is probably true that marriages are somewhat more portable than domestic partnerships, but this is not black and white. Most states probably aren’t going to recognize a California marriage. If you work for IBM in California and come to New York, they will. . . . If a New York couple goes to California and gets married, New York will recognize it.

“From a lawyer’s standpoint,” stated Coles, the decision “got you a little better portability, but it didn’t get you a whole lot. But this ultimately is to miss the point. The court got the point!”

This isn’t just about marriage. “This isn’t really about marriage, or isn’t just about marriage,” said Coles. Rather, it is about discrimination. He continued, We tend to think of race or gender as blind prejudicial ugliness but that’s not the way it looked 40 to 50 years ago. When it’s still being tolerated, it needs a rationale. There is always a rationale that says this is why this group of people is different than the rest of us. Race, sex, disability. . . .

Coles cited the existence of various stereotypes of particular races, including African Americans and Asian-Americans:

An Interview with Matt Coles

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People used to believe this stuff . . . even moderates. With gay people it’s always been shallow, incapable of committing to other people, selfish. Marriage really puts that squarely into the lens. If you say same-sex marriage covers the same range, from one night to a lifetime, as in other relationships, then you’ve destroyed the rationale for discrimination.


“The judge totally gets it,” Coles explained. “Both legally and socially, that’s the headline of the case. The political, social and legal understanding is really pretty much the same here. We’ve woken up to the fact that sexual orientation tells you nothing about the capacity for love and commitment.” In describing the jubilant reactions in San Francisco, Coles asserted: “Dancing in the streets was not necessarily about marriage per se, but about anti-discrimination. That sets the case apart.” In the Court’s own words: We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights. . . . These core substantive rights include, most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. (ACLU, 2008, pp. 6–7)

Coles commented on the decision from the perspective of dissension that exists within LGBT communities about same-sex marriage (for a discussion of this see Mul´e, in this journal issue). Not only are some LGBT individuals indifferent to marriage; others see it as a threat to gay culture, a capitulation to heteronormativity, and, further, a basis for future discrimination against LGBT people who opt not to exchange marriage vows. “This isn’t the way I wanted to do this in Berkeley in ‘85 and San Francisco in ‘89,” Coles explained. “Everybody ought to have a range of options; for straight people, too. But we don’t get to make those calls. A motivated minority wanted to make this an issue. There wasn’t a whole lot else . . . you make the best of it.” But Coles was loud and clear about the great significance of the Supreme Court decision and the Court’s argumentation in support of the ruling: “We can make this into the engine that destroys most of the discrimination.”

The decision doesn’t come out of nowhere. Having been at the forefront of the LGBT rights movement for three decades, Coles is in a unique position to evaluate the trajectory of change and where the California decision fits in, as well as directions for the future. In particular,


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we discussed the ramifications of the California Supreme Court decision for other states, and for social workers and advocates for human rights and social justice. Coles recounted the developmental nature of the California Supreme Court decision in terms of decades of incremental progress. From the first municipal nondiscrimination law in California in 1978, a statewide nondiscrimination law was passed in 1997. The first municipal domestic partnership ordinance was passed in California in 1982. Other local ordinances kept getting passed. Finally, domestic partnership became a statewide reality in 2005. As Coles explained, “The California marriage decision doesn’t come out of nowhere. . . . Thirty-one years of slowly but surely getting the people of California used to LGBT issues and relationships. Other states won’t take thirty-one years. . . . California started from ground zero.” Coles explained: In a lawyer sense, the outcome means less than you might think. California already had a domestic partnership system (called civil unions by the rest of the U.S.). People usually use the word domestic partnership to mean some kind of government recognition far short of marriage. It started as municipal certificates . . . or health and pension plans. California started like that in 1998; you got a certificate from the Secretary of State.

Indeed, I have a copy of my own certificate, which was issued rather unceremoniously at that time in a government office in San Francisco. Coles continued: “In 2005 it was built up and with some very minor exceptions, California gave same-sex couples and domestic partners the same legal obligations and rights that it gave to married couples. Under state law, domestic partnership and marriage were indistinguishable.” If one views the court decision solely within the realm of same-sex marriage, Coles explained, the change in California is not so vast. For example, federal legislation concerning marriage is a factor. Coles recounted that because of the Defense of Marriage Act (DOMA) signed by President Clinton, the federal government will not recognize a legally authorized same-sex relationship, whether marriage or domestic partnership. So the California court ruling does not change anything in terms of income tax or social security. However, one advance specifically in terms of marriage is in regard to portability.

Portability Portability refers to getting married in one state and going to another state, and the extent to which the second state will recognize the relationship.



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Coles referred to a “happy accident” that occurred as a result of an “almost unnoticed case in upstate New York,” the Martinez case (Black, 2008; Martinez v. County of Monroe, 2008). Martinez was a teacher at Monroe Community College in Rochester who was upset because the college did not recognize domestic partnerships. Her partner needed health coverage. They went to Canada and got married. Subsequently, Martinez sued the college; and shortly after, she sued her union to get domestic partnerships recognized. She lost. The case was taken up by the ACLU’s New York affiliate. Coles stated that the ACLU affiliate “didn’t like the case and tried to talk them out of it. They lost at the first level. Then they appealed. The appellate court was extremely conservative.” The appellate court emerged with a unanimous decision. Effectively the court said, “We always recognize marriages from other places. The New York High Court said the Constitution didn’t require (that New York State legalize) same-sex marriage; but we have to recognize other states’ same-sex marriage.” On May 14, 2008, New York’s Governor David Paterson “said to all the arms of the state that they have to abide by that decision. In effect you can get married in Canada or Massachusetts or California, and if you come back New York will treat you as married” (cf. Peters, 2008). In June 2008, a group of taxpayers, including two Republican senators from New York City, brought a court challenge to Governor Paterson’s directive. They argued that the directive was a “wrongful expenditure or illegal disbursement of state funds,” and violated the separation of powers under the New York State Constitution (Walder, 2008). Acting State Supreme Court Justice Lucy Billings dismissed the court challenge, refuting both of its claims. Beyond that, the wording of her ruling is clear in regard to portability: When partners manifest the commitment to their relationship and family . . . by solemnizing that commitment elsewhere, through one of life’s most significant events, and come to New York . . . to carry on that commitment, nothing is more antithetical to family stability than requiring them to abandon their solemnized commitment. (Golden v. Paterson, 2008, p. 19)

Justice Billings concluded that in the absence of a policy shift that specifically prohibits recognition of same-sex marriages lawfully performed in other jurisdictions, such “expressions of public policy are . . . consistent with a tradition of affording equal rights to all New Yorkers, a tradition not to be abandoned lightly, without an unmistakable expression” of legislative intent (Golden v. Paterson, 2008, p. 19).

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Other states: Be strategic. As of November 2009, five states issue marriage licenses to same-sex couples: Massachusetts (from 2004), Connecticut (2008), Iowa (2009), Vermont (2009), and New Hampsire (effective on January 1, 2010), with a Washington, D.C. law pending Congressional approval in early 2010. Regarding what these rulings mean for the rest of the country and, specifically, for social workers and advocates of social justice and equality, Coles remarked,


As a general matter, you need to win some in state legislatures to get away from the notion that this is something that the court has imposed. There is a very good shot from state legislature in New Jersey. In New York we have a good chance if the Democrats get control of the state senate.

Strategically, Coles explained, “The program is let’s bet smart; let’s say where are the places we have the best chances of winning next. Let’s concentrate a bit on legislatures, not just courts. Let’s try to start racking up wins.” Coles’ description of a possible case scenario is instructive for advocates. He explained that even if New York did not pass same-sex marriage legislation soon, same-sex marriage already exists in Massachusetts. It was very possible that legislation would be passed in Connecticut (now passed at the time of this writing); and a “very good chance” exists of passing same-sex marriage legislation in New Jersey. “New York will be surrounded,” he said. “That will be transformative.” From his longtime perspective on the journey to equal rights for LGBT persons, Coles described that a “second strategy is to get other states ready.” “Berkeley in 1985 had the first domestic partnership law in California,” Coles recounted. Twenty-four years later, California passed same-sex marriage legislation. (The law remained in effect from June 16, 2008 until November 4, 2008 after which it was rescinded.) From that perspective, “New Jersey will be quicker,” he said. In addition, Coles said, “some other states are further along than others.” Still, others from more socially conservative locales may be less optimistic about the likelihood of same-sex marriage as an option in their home states. From Coles’ perspective, having California and New York laws in place would be extremely beneficial: We will have same-sex marriage in two of the economically most important places in the U.S. LA is the most culturally important place in America. And New York City is the financial capital of the country. With that level of cultural and financial acceptance, there will be enormous pressure on institutions all over the country.


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We have to hold onto it. We discussed the important, already disputed referendum on the California general election ballot for November 2008, Proposition 8, titled “Eliminates Right of Same-sex Couples to Marry Act.” He emphasized the value of this initiative, and the meaning it would have if it didn’t get approved.


We have to hold onto it. It will be on the ballot. California is the most important driver. “Marriage is between a man and a woman” would overrule the California Supreme Court decision. That’s a serious setback. On the other hand, if we win that election [i.e., the proposition is not supported], everything about the import of this will be doubled.

Coles stated, “Opponents say marriage for same-sex couples is a creature of unelected judges captured by the gay rights movement. California is different: marriage ‘yes’ or ‘no.’” If the anti-same-sex-marriage initiative fails, it means that we will have won a popular election supporting same-sex marriage in one of the most influential states in the United States, he said. “What’s clear is that we go into this election with an evenly divided electorate with seven to fifteen percent undecided.” Coles explained, “That’s a relatively small number undecided.” The “wild card” is what effect current same-sex marriages will have on politics.”We know the effect of a couple of years. Massachusetts suggests that after a couple of years there is broad public acceptance. The sky didn’t fall. Why should we take it away?” In California, however, only five months separated the Supreme Court decision and the referendum. Coles offered, “Up until now [reactions were] negative at first; if correct, that is bad for us. But same-sex marriages have been very well managed. The publicity is quite good. I’m hopeful that this will work.” It is “no accident,” Coles explained, that the first marriage ceremony was performed between Phyllis Lyon and Del Martin, two pioneering lesbian rights activists who had been in a committed relationship for 55 years. “We can win it. It will cost a lot of money,” said Coles. In the general election of November 4, 2008, Proposition 8, the California ballot initiative against same-sex marriage passed, by a vote of 52% to 48%. For now, this is a setback for the equal right to marry. A number of city, state, and national protests have ensued, and several legal challenges are pending against Proposition 8.

And then there’s DOMA. Finally, Coles spoke about change at the federal level. DOMA means that “the fed[eral government] isn’t going to recognize same-sex marriage even if states do.” However, if California and New York both pass same-sex marriage legislation, that is a “powerful case to getting rid of that part of DOMA.”

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“Should we use the fed[eral government] to, at a minimum, compel other states to recognize same-sex marriages performed in other states?” posed Coles. At some point, yes; go to Congress and say, “you ought to go the other way on DOMA,” and say to states, “look, it’s up to you to decide if you want to recognize same-sex marriages from other states. You can’t recognize marriages from straight couples and not gay couples.”


For the longer—though not too long—effort, Cole envisioned, “If we have fifteen or twenty states in ten years, we can get Congress to do it. We can get Congress to repeal DOMA.” Until then? “There’s a number of years and a series of steps.” Matt Coles has served as Director of the American Civil Liberties Union Lesbian, Gay, Bisexual, Transgender and AIDS Project since 1995. In addition to his work on the Florida adoption ban, he was one of the main architects of the ACLU’s successful challenge to Colorado’s Amendment 2, which culminated in the landmark U.S. Supreme Court decision in Romer v. Evans. He has argued two of the challenges to “don’t ask, don’t tell” before federal appeals courts and he wrote and helped lead the campaigns to pass many gay rights laws, including the first comprehensive civil rights law in California and the nation’s first domestic partnership law.

REFERENCES American Civil Liberties Union (ACLU). (2008). In re Marriage Cases. [Six consolidated appeals.] Opinion No. S147999. Date Filed: May 15, 2008. Court: Superior. County: San Francisco. Judge: Richard A. Kramer. Retrieved September 26, 2008, fromwww.aclu.org/images/asset upload file713 35332.pdf. Black, N. (2008, February 11). Commentary: It all depends on how you define “marriage.” Daily Record (Rochester, NY). Golden v. Paterson. (2008). Supreme Court of the State of New York, County of Bronx: Part 16. Index No. 260148/2008. Retrieved December 23, 2009, from http://data.lambdalegal.org/in-court/downloads/golden ny 20080902 decision-and-order.pdf. Martinez v. County of Monroe. (2008, February 1). Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department, County of Monroe. Index No. 1562 CA 06-02591. Retrieved December 23, 2009, from http://www.courts.state.ny.us/ad4/court/Decisions/2008/02-0108/PDF/1562.pdf. Peters, J. (2008, May 29). New York to back same-sex unions from elsewhere. The New York Times. Retrieved September 26, 2008, from www.nytimes.com/ 2008/05/29/nyregion/29marriage.html. Walder, N. G. (2008, September 3). Judge upholds recognition of out-of-state gay marriages. New York Law Journal (NYLJ). Available at http://www.law.com/jsp/ PubArticle.jsp?id=1202424342356