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California same-sex marriage ruling will fuel nationwide push, expert says

6/10/2008

Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

David Meyer
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Law professor David Meyer says he thinks it's inevitable that the U.S. Supreme Court will ultimately have to consider same-sex marriages because of the constitutional issues.

CHAMPAIGN, Ill. — An expected crush of same-sex marriages looming in California will also touch off a new wave of lawsuits seeking to make the long-debated unions legal nationwide, according to a University of Illinois expert on family and constitutional law.

“The pressure will continue to build and I think it’s inevitable that the U.S. Supreme Court will ultimately have to consider same-sex marriages because of the constitutional issues,” law professor David Meyer said. “But it may take some years because I’m sure the court is not eager to wrangle with it.”

Meyer predicts California’s same-sex marriages will spawn a host of legal challenges because – for the first time -- gay and lesbian couples from across the country will be allowed to wed when it starts issuing new gender-neutral marriage licenses on June 17.  Massachusetts also allows same-sex marriages, but effectively limited them to only state residents.

Out-of-state couples will head home from California and seek to have their marriages recognized, Meyer said, then turn to the courts after being denied based on laws in the books in most states that define marriage as the union of a man and woman.

So far, besides Massachusetts, only New York intends to recognize same-sex marriages performed in California, though New York Gov. David Patterson’s directive that state agencies acknowledge the unions already faces a court challenge.

Meyer says lawsuits seeking same-sex marriage in other states are nothing new, and have failed in lower courts because of state laws that espouse a traditional man-woman definition of marriage.

“The track record so far has not been promising and no appellate court has found an entitlement to same-sex marriage under the U.S. Constitution,” he said.

But marriages in California and possible recognition in New York will move the issue to the front burner in two of the nation’s three most populated states, providing “critical mass” that could ultimately take the case to the Supreme Court, Meyer said.


“I think it will take a while to get a foothold on some of the constitutional issues, but eventually it will have to go to the Supreme Court to decide those constitutional questions,” he said.

Among them, Meyer says, is whether refusing to recognize California’s same-sex marriages violates the Constitution’s full faith and credit clause, mandating that each state honor the laws and judgments of other states.

Advocates also could argue there is a fundamental right to marry, so refusal to recognize same-sex marriages violates both equal protection and due process provisions of the Constitution, he said.

The California Supreme Court cited Meyer’s research on the constitutional rights to recognition of marriage last month when it ruled that withholding marriage from same-sex couples is discriminatory.

Meyer says the court ruling is further evidence that public opposition to same-sex marriage continues to soften as each new generation comes along.

“The public is moving toward acceptance of same-sex relationships and even same-sex marriage, and I think the courts are also moving in that direction,” he said. “It’s going to take some time before that becomes the legal consensus, but I think it will happen. The hard part is predicting how long it will take to get there.”

Editor’s note: To contact David Meyer, call 217-333-3232; e-mail ddmeyer@illinois.edu.