Voided Same-Sex Vows No Surprise

Same Sex Marriage. Bride and Groom ornaments on USA Map
Attorney Andrew Cohen analyzes legal issues for CBS News and CBS News.com.

The legal principle reaffirmed Thursday by the California Supreme Court on the same-sex marriage front is so basic that it's almost embarrassing to have to repeat: a local official cannot take it upon himself to interpret the law in a way that the courts or legislature of a state have not.

Think about it. It's a cornerstone concept in American law. It's a cornerstone concept in the law of every civilized nation. Without it, we'd be living in a state of anarchy.

That's why the ruling that voids more than 4,000 same-sex marriage licenses is just about the least surprising ruling to have been issued by any court anywhere in the past year. Local "officials exceeded their authority by taking official action in violation of applicable statutory provisions," the Court concluded.

In other words, local officials without the power to do so made up the law and then tried to enforce it. You don't need a law degree to figure out that there is something fishy about that scenario.

It would be easy to suggest that the ruling presages a more global defeat for proponents of same-sex marriage. But that would be premature. The case against San Francisco mayor Gavin Newsom, which the California court decided today, was about procedure. The case about the constitutionality of same-sex marriage in general, which is about as substantive a case as you can get, won't be decided until probably sometime next year.

The ruling against Newsom, then, was as expected as it is irrelevant to determining what this same court will do down the road when the larger issue is before it.

Let's put it yet another way.

Just because all those licenses were voided today doesn't mean that same-sex marriages in California won't ultimately be deemed constitutional.

The Justices themselves said so. And it took an opponent of same-sex marriage, Jordan Lorence of the Alliance Defense Fund, to spin things accurately in stating the obvious. "The Justices have restored the rule of law in California," he told the Associated Press. "The decision shows that same-sex 'marriage' is not inevitable."

Precisely. In the larger context of the legal, political and cultural war over this issue, Thursday's ruling means nothing more or less than this. Same-sex marriage is neither inevitable nor inconceivable. This was true before the big ruling and it is true now after it.

In practical terms, of course, the ruling means a lot to the people who got those same-sex marriage licenses a few months ago. For them, at least for the time being, those licenses are good only as symbols of what was and what might be. They have no force of law and may never again (and they didn't have a tremendous amount of legal effect to begin with, to be quite honest).

This class of ersatz spouses now has decisions to make about whether they want to sue California under a theory that they relied to their detriment upon the issuance of those licenses. Those lawsuits probably wouldn't succeed but might stir up a pot that's already roiling.

And now that the easy part is over, the hard part begins to take shape.

Now that the clutter of Mayor Newsom's conduct has been cleared away, some of the smartest, sharpest attorneys in the country can focus on the endgame fight over marriage in the state.

The question is whether any person, regardless of sex, has a fundamental right to marry; whether the California state law that defines marriage as a union between only a man and a woman is consistent with the state's constitution or must yield to it.

It is an issue as difficult as today's issue was simple. It took the Massachusetts court system years to figure out that larger question and I suspect it will take the California courts at least as long as well.

Today's ruling was a clear one for opponents of same-sex marriage. No amount of spin can change that. But the big fight still looms and everyone, including the justices of California's high court, knows it.