Roadblocks Ahead for Gay Marriage

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Ellen Degeneres has said that she and her partner, Portia de Rossi, will soon wed.

Just hours after the California Supreme Court ruled last week that marriage is a fundamental right enshrined in the state constitution — one fully available to gay couples — opponents gave warning that they were not about to let the divided high court have the last word. Brandishing more than 1 million signatures from an ongoing petition campaign, they plan to put before voters as soon as November a proposition that would amend the constitution to forbid same-sex marriages. (A Los Angeles Times poll shows a majority of registered voters would support the amendment, preferring to overturn the ruling). The alliance of groups opposed to gay marriage, meanwhile, has petitioned the court to delay such unions, which could begin as early as June 16, until after the November vote.

Should Ellen DeGeneres stop planning for her wedding to Portia de Rossi? The potential proposition, if it succeeds, sounds like a recipe for heartbreak for gay rights supporters, opening only a small window to marry from mid-June to November. But it shouldn't be. In fact, if lawyers successfully fight the delay, the ruling sets the stage for gay newlyweds to push the issue back home in states all over America, even as it provides Californians the strongest-ever protection against anti-gay discrimination.

The sweeping decision, which made California only the second state in the U.S. — and sixth jurisdiction in the world — to recognize gay marriage, gave gay Californians the same protections that have traditionally been used to block discrimination based on gender, race or religion. And in that way, it goes far beyond the issue of marriage. An amendment in the fall won't change that, says Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University. In anchoring its ruling on sweeping new equal rights protections for gays, the court opted for boldness. In an interview with the Los Angeles Times published Sunday, Chief Justice Ronald M. George, a moderate Republican, said he came to see the struggle of gay Americans in a light similar to the long struggle by African-Americans for equality under the law. "I think," he told the paper, "there are times when doing the right thing means not playing it safe."

That boldness combines with the likely influence of decisions of the California Supreme Court. It has a history of broad influence of the way other tribunals, including the U.S. Supreme Court, interpret fundamental constitutional issues. A case in point: 60 years ago, George's predecessor Justice Roger Traynor authored an equally groundbreaking — and divisive — opinion tossing out California's ban on interracial marriage. Nearly two decades later, the Supreme Court followed suit, citing the landmark California case. But it was a bumpy road. When the high court issued its famous Loving v. Virginia decision, there were still some 16 states with laws on the books forbidding whites and blacks from marrying.

It might not take 19 years for the Supreme Court to rule this time. Unlike Massachusetts, California has no residency requirement for marriage licenses. So beginning sometime next month, gay couples from all over America will be headed to California to be wed. Most of them will return to states that won't recognize those marriages. When they begin to sue in federal court, they'll likely claim the denials violate the privileges and immunities clause of the U.S. Constitution and its promise of full faith and credit.

That will likely happen even if the voters in the fall restrict gay marriage to opposite-sex couples. Such challenges, however, are anything but a sure thing. If the federal courts rule that the 1996 Defense of Marriage Act is constitutional, gays in states where marriages are banned will likely be out of luck, Sam Marcosson, a constitutional law professor at the University of Louisville Louis D. Brandeis School of Law, told TIME.

Marcosson, however, points out a paradoxical possibility. He says the strongest cases will probably not involve gay marriage at all, at least not directly. They'll be the child-support cases that arrive out of its corollary, same-sex divorce. "The court would have to recognize the original marriage as valid to enforce the divorce and child support decree — and thus give it full faith and credit," he says.

How will the federal courts view these cases? That will likely depend on where they are, and who is doing the deciding. But such split decisions are a classic recipe for intervention by the Supreme Court. The justices' conservative bent might spell trouble for gay plaintiffs, but the court's most recent decisions on gay rights have been mixed, and the presidential election could have an impact who will be beneath the robes by the times the cases are heard.

But come what may in Washington, last week's decision in California made history by putting the history of gay Americans' struggle for civil rights in the same sphere as earlier American struggles by women, African-Americans, Jews and others who have faced discrimination. That remains the case — and the law in California — no matter what Golden State voters decide in the fall.