Balkinization  

Friday, February 13, 2004

JB

I Left My Heart and (Got My Marriage License) in San Francisco

On February 12th, the birthday of the Great Emancipator, Abraham Lincoln, the Mayor of San Francisco ordered the city clerk's office to begin awarding marriage licenses to same sex couples, the Los Angeles Times reports.

Because existing California law (which preempts municipal law to the contrary) defines marriage as the union of a man and a woman, the city's tactic will fail unless it can get the California courts to hold that the California law is unconstitutional. My guess is that the courts will not agree, and we may even see a proposed amendment to the California Constitution to reemphasize that fact.

Given that the mayor's stunt will almost certainly fail legally in the short run, is it a wise strategy in the long run? Yes, because the push is coming from an elected official and not from a court. Even if courts guarantee same sex couples the right to marry, that right won't be fully secure until lots of public officials support the practice. Right now a significant number of national politicians support civil unions, but not very many are on record as supporting same sex marriage. To be sure, one might expect that the Mayor of San Francisco would be among the first politicians to push hard for same sex marriage. But even if his action doesn't sway lots of people in California, or the nation as a whole, it's an important start.



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