Will the California Supreme Court kill the anti-gay marriage amendment before it has a chance to reach voters next November? It could. On Friday, our favorite legal triumvirate (the NCLR, Lambda and the ACLU) teamed up with private lawyers to ask the justices to toss the amendment before the November ballot materials are sent to the state printers on Aug. 11.  The group argued that the petitions that qualified the amendment were based on inaccurate information, and that the amendment itself is actually a “revision” to the constitution, which must be initiated by the legislature, not the citizens.

Let’s start with point one. Like every proposed ballot measure, the amendment to limit marriage in California to a man and a woman included an estimate of its fiscal impact on the state. All through the winter and spring, our relentless foes gathered signatures for their insidious scheme, which included the following statement from the Legislative Analyst and Director of Finance:

“The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state.”

Well, that’s no longer true. Thanks to the California Supreme Court, the amendment to restore the restrictions on marriage will indeed change the “manner in which marriages are currently recognized by the state.” Further, our allies argue that the amendment will have a fiscal impact by putting an end to the economic benefits of same-sex marriages and marriage tourism, which are projected in the hundreds of millions.

I was convinced. But that’s just me. I can also imagine that anyone who signed the petition to begin with (and there were about 1.1 million raw names on the list) would not give a rat’s tail whether or not the i’s were crossed and the t’s were dotted on the statement from the Legislative Analyst and Director of Finance. Further, the projected marriage income is speculative.

Nonetheless, it seems a worthy argument n’est-ce pas? Particularly if the legal eagles can find a few petition signers to testify that while they were in favor of the amendment back in the day, they are not in favor of stripping couples of marriage rights now that said rights have been won.

Moreover, the challenge to the petition text is an issue that must be decided prior to the election. That is not necessarily the case for the second claim, the charge that the permissible “amendment” is actually an impermissible “revision” in disguise. But since the justices are stuck having to decide the first issue without delay, our guys argue that they might as well tackle the second as well, rather than waiting until after November.

The second claim is an echo of a lawsuit that we just lost in Oregon, where gay allies had been challenging the anti-marriage constitutional amendment passed in 2004. (Note well that the Beaver State litigation took three and a half years to reach a conclusion, hence the desire in California to answer the question before the election.) 

In Oregon, as in California, either the legislature or the citizenry may “amend” the constitution, but only lawmakers can “revise” the constitution. The difference? Please don’t ask! As I mentioned above, the Oregon justices ruled last month that the Beaver State marriage amendment was indeed an “amendment” not a “revision.” So that measure stands. But in California, while the complaint is the same, the context is totally different.

A constitution, whether state or federal, is composed of both texts and interpretation. Case law is as much a part of a constitution as are its articles and clauses. The constitutional right to watch porn in your living room is not spelled out in the federal constitution. But it is, shall we say, rock hard law under Supreme Court precedent. I forget the citation. So now, thanks to the marriage ruling, discrimination on the basis of sexual orientation is presumptively unconstitutional and marriage for members of the same sex is an acknowledged fundamental right. Under these new circumstances, wouldn’t a measure that effectively singles out gay men and lesbians as a class and denies them access to marriage be a profound shock to the core principles of the state constitution? Wouldn’t it, therefore, be a “revision” rather than an “amendment.”

Once again, I’m sold! We’ll see whether the justices like the idea shortly. But before we finish this topic, I must pass along the words of wisdom of one of the legal eagles involved in this challenge, who spoke to me at length about this subject the day after the high court’s marriage ruling in mid May. I had just seen the Oregon ruling, so I wondered whether the same legal tactic, albeit a failure in Salem, could succeed in San Francisco. Possibly, said this lawyer, but it would be far better to fight for marriage and win it in a popular referendum than fall back on a technical legal maneuver. Marriage, my friend went on, is something we must win in the hearts and minds of our fellow citizens, and this November provides us with that opportunity. Plus, if we win in November, we will forever silence the nasty little voices screeching that our rights arise from the whims of “four un-elected judges” and should not stand.

I applaud this lofty sentiment, and totally agree. But I still would be quite happy to see the proposed amendment knocked off the ballot. Can’t help it.

Sex In The Mall
What else is new on the marriage front, you ask? I think Tasmania is about to legalize same-sex unions, and I already told you that Norway did so last week. In addition to that, I have a list of marriage topics that includes an illegible item that seems to read: “forced orgy for Kmart.”

Ah ha! That was, in fact, the news that Superior Court Judge Richard Kramer, the original trial judge in the California marriage cases, has officially slammed down his gavel on the case. The decision in favor of same-sex couples was issued May 15 by the high court, as you know, and remanded down the line back through the appellate court and downward to Kramer. My list item actually read “final order from Kramer.”

Among the other notations is a reference to a fascinating report from newshound Rex Wockner (see U.S. News Briefs), who says that gay couples who marry and return to Wisconsin or Delaware may face fines and/or prison sentences under laws that prohibit end runs around state marriage rules. Can you imagine? Is that really true? Are there other states with criminal statutes like these on the books? I would look up the answers to these questions had I the time. 

And you should also know that New York Senate Majority Leader Joe Bruno has decided not to run for reelection, and the great sucking sound you’re hearing out of Albany is the Republican power vacuum that may or may not be filled by a like-minded successor. Bruno, who reigned for 32 years over the conservative chamber, made sure that any gay rights bill that made it out of the Democrat-controlled assembly would die a peaceful - or not - death in his GOP-dominated bailiwick.  Yes, he softened enough to pass the Sexual Orientation Nondiscrimination Act several years ago, but same-sex marriage was well beyond whatever line in the shifting sands he may have toed. Now, with a very gay friendly Democrat in Albany and with the Republican senate majority hanging by a seat or two, there is an actual shot at same-sex marriage becoming law through political action in the Empire State.

Doctors Despicable; A Must Read News Item
Now, I have a horror story for you that illustrates the tragic consequences of anti-gay family laws. Back in February of 2007, Lisa Pond and her partner of 18 years, Janice Langbehn, were traveling in Florida with their three kids when Pond, just 39, burst a brain aneurysm and collapsed. The family, from Olympia, Washington, had been scheduled to take a cruise out of Miami. Instead, they found themselves following Pond to Jackson Memorial Hospital.
There, Pond lingered for eight hours while Langbehn was denied access to her partner’s room. At that point, a doctor told Langbehn that Pond would not survive, and granted the family five minutes of access in order to witness Pond’s last rites. At no time was Langbehn acknowledged as family. Nor was she consulted for a medical history. After Pond died, Langbehn was refused a copy of her death certificate by the State of Florida and by the Dade County Medical Examiners Office.

My source for this unbelievable story is Lambda Legal Defense, who sent a letter to the hospital on Langbehn’s behalf last January. Receiving no reply, the legal group filed suit in federal court last week. And here’s the kicker. Langbehn had a health care directive signed by Pond, as well as medical power of attorney. Both forms were faxed to the hospital on the day of the tragedy, and the documents were ignored. Yes, Florida has a ban on recognizing same-sex marriage. But to my knowledge, the Flaccid Penis-Shaped State does not have a law that nullifies power of attorney, which can be vested in Santa Clause if that’s what an individual wants to do.

It’s always irritating when conservatives, like John McCain and others, pretend to be open minded by announcing that same-sex couples should have every right to draft wills or medical power of attorney and make whatever private legal arrangements they want. Thanks for nothing, Mac. Everyone already has that right—- gay or straight; we can all leave our worldly goods to our toy poodles and authorize our cabana boy to make our medical decisions. 

So it is doubly, triply outrageous that authorities in an anti-gay state would extrapolate from their marriage laws to deny the validity of these basic legal provisions. This hospital deserves to eat millions in punitive damages, although of course no amount of money would compensate Langbehn for the day she spent helplessly waiting for her partner of two decades to die without explanation or succor.

And finally, let me tell you about a friend of mine, who also suffered a sudden aneurysm, who was also rushed to an ER, who was also in a coma and who also had last rites and was considered touch and go. Thankfully, my friend survived, but not before she spent over a month in the hospital and another two months in a rehab institution. Throughout it all, her partner was treated as the closest kin from the word go. And this despite the fact that Texas (where I live) also boasts an anti-gay constitutional amendment and this couple did not even have the necessary medical documents. During the long recovery, it became even more clear to every health care provider that the person who would make the decisions was not an official family member, but the woman who spent hours and hours every day and every evening at the patient’s bedside.

I don’t know if my friend’s partner made a difference by being at her side during those terrible first hours, but it certainly didn’t hurt.

Last Words
I hate it when I end a story with only 150 words left in my column. It’s not really enough space to launch into a new topic, but I wouldn’t feel right shorting that amount of news. Now, for example, I am tempted to remind you that the once-a-decade Lambeth Conference is around the corner, and that conservative members of the Anglican Communion are threatening to boycott the confab and are meeting on their own - perhaps to engineer the beginning of a formal schism. (Cue: blood-curdling scream!)

But I can’t do justice to the years-long debate over gay friendly policies in the American Episcopal Church and I don’t want to end this column on such a weighty subject. So instead, I went to the Episcopal joke web site and asked: How many Episcopalians does it take to change a light bulb? The answer was three:

One to call the electrician, one to mix the drinks and one to talk about how much better the old one was. (Drum roll, please.)

But now I face a further dilemma. I reached my word limit, but I have another story for you from the aforementioned web site:

“A man in Topeka, Kansas decided to write a book about churches around the country. He started by flying to San Francisco and worked east from there. Going to a very large church, he began taking photographs and notes. He spotted a golden telephone on the vestibule wall and was intrigued with a sign which read: “$10,000 a minute.” Seeking out the Pastor he asked about the phone and the sign. The Pastor answered that the golden phone was, in fact, a direct line to Heaven and if he paid the price he could talk directly to God. The man thanked the Pastor and continued on his way.

“As he continued to visit churches in Seattle, San Diego, Greensboro, Tampa, Chicago and all around the United States, he found more phones with the same sign with the same answer from each Pastor.

“Finally, he arrived in Texas. Upon entering a church in Dallas, behold, he saw the usual golden telephone. But THIS time, the sign read: “Calls: 35 cents.” Fascinated, he asked to talk to the Pastor. “Reverend, I have been in cities all across the country and in each church I have found this golden telephone. I have been told it is a direct line to Heaven and that I could talk to God, but, in the other churches the cost was $10,000 a minute. Your sign reads 35 cents. Why?’

“The Pastor, smiling benignly, replied, “Son, you’re in Texas now. . . it’s a local call.’”

—arostow@aol.com