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Unprecedented ceremonies and court decisions have recently catapulted the gay marriage debate into the national spotlight, wedging it into the thick of steamrolling presidential campaigns and forcing the country to settle a legal debate that has no foreseeable end. Many of the nation’s courts will have their hands full for most of the immediate future as gay rights advocates garner momentum. With instances like the Massachusetts Supreme Judicial Court ruling earlier this month, which determined barring gay marriage is unconstitutional, and San Francisco’s recognition of thousands – and counting – of gay marriages, a sense of immediacy has been branded on the issue. Currently, it is up to individual states to determine the validity of gay marriages and civil unions. Thirty-eight states have laws or amendments barring the recognition of gay marriage, though many of those states recognize civil unions. California is one such state, but one of its most recognized cities is looking to turn the existing law on its head. Mayor Gavin Newsom has advocated the gay marriages in San Francisco – even performing a ceremony –, prompting thousands of gay couples from around the country to flock to the city to have ceremonies performed for them. Newsom has argued that California codes, which define marriage as being between a man and a woman, conflict with a clause in the state constitution providing for equal protection under the law. Efforts brought to two superior courts to stop the ceremonies being performed in San Francisco have been denied, with the courts saying they pose no immediate or irreparable harm. Gov. Arnold Schwarzenegger has taken a public stance against the marriages, even ordering state Attorney General Bill Lockyer to halt the ceremonies. Lockyer’s office shot back saying it was working as quickly as possible on the issue, and admonished the governor for trying to tell the office what to do. And on Tuesday, President Bush announced his formal support for a constitutional amendment to ban gay marriage. The statement should play a large role in his re-election campaign, and many Democrats have accused him of using the gay marriage issue for political gain. The White House has maintained that the definition of marriage needs clarity and argued for protecting the sanctity of marriage. Bush’s stance has emphatically galvanized the gay marriage issue from a series of isolated pockets scattered throughout the country into a nationwide debate. But as this debate develops, Massachusetts and California will lead the way.

State court issues Meanwhile, on the San Francisco matter, Lockyer is pressing the California Supreme Court for a speedy resolution on the legality of the city’s gay marriages. At this point, the composition of the state court would make it unlikely that it would decide in favor of same-sex marriages, said Brad Sears, a UCLA law lecturer and administrative director of the Charles R. Williams Project on Sexual Orientation and the Law. But Sears added that as far as the law is concerned, the state constitution’s equal protection clause takes precedence over the California code defining marriage as being between a man and a woman. “Every California statute must be consistent with the state constitution,” Sears said. “That’s what’s being challenged now.” Eugene Volokh, a UCLA law professor, also said gay marriage advocates in the state shouldn’t expect much success on the San Francisco issue. “I don’t think that going through courts will work for them in California; I don’t think California courts will strike down this statute,” he said.

The role of the U.S. Supreme Court Neither the Massachusetts nor San Francisco cases will make their way to the country’s highest court in their current forms. But it is reasonable to believe that in the foreseeable future a gay marriage case could be considered for review by the U.S. Supreme Court. In this case, there is no clear indication on how the court would stand on the issue. In the most notable sexual orientation law case of 2003, the court ruled 6-3 in Lawrence v. Texas, striking down an anti-sodomy law the majority believed to be discriminatory against gays. The majority opinion, held by Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, argued that there is a constitutional right to engage in private homosexual intimacy. Justice Sandra Day O’Connor issued a concurring opinion. But both Kennedy, who wrote the majority opinion, and O’Connor, in her own written opinion, specifically stated that they were limiting their opinions to the criminalization of private sexual activity. They made it clear that their decisions did not extend to recognition of same-sex marriages. These exemptions make it difficult to predict what the court would decide on the issue of gay marriage. This is especially so in the case of the relatively moderate O’Connor. She has sometimes served as a swing vote between the traditionally conservative justices, composed of Chief Justice William Rehnquist, Kennedy, Antonin Scalia and Clarence Thomas, and the traditionally liberal justices made up of Breyer, Ginsburg, Souter and Stevens. Sears believes that O’Connor “definitely will stick to that position,” and that she would not base an analysis of same-sex marriage on the same privacy grounds of same-sex sexual activity. Volokh, who previously clerked for O’Connor in the Supreme Court, predicts a substantive shift from the Lawrence ruling. “Today, it would probably be at least a 7-2 vote against finding a constitutional right to gay marriage,” he said. There are also fairly clear distinctions between Lawrence and a potential review of gay marriage issues by the Supreme Court, said Jonathan Varat, former dean and current professor at the law school. “Lawrence emphasizes privacy and sex intimacy,” said Varat, who clerked for the late Justice Byron White, who was replaced by Ginsburg in 1993. “Public recognition is distinguishable from that.”

Amending the issue The constitutional right to gay marriage to which Volokh referred may never even come up for debate if the president’s recommendation of a constitutional amendment banning gay marriage passes through both houses of Congress (or a constitutional convention) and then three-fourths of the states. “We need to act now,” said White House spokesman Scott McClellan. “The constitutional process will take time.” Varat sees the amendment proposal as a long shot. “We rarely have amended the constitution for purposes seen as limiting people’s rights ... other than prohibition, but that was repealed anyway.”

With reports from Bruin wire services.