Some states re­sist high court’s rul­ing

But is it the fi­nal word on same- sex mar­riage? Some states’ ac­tions say no.

Los Angeles Times - - FRONT PAGE - katie. shep­herd @ latimes. com Twit­ter: @ katemshep­herd By Katie Shep­herd

Same- sex mar­riage is now le­gal, but ques­tions re­main over reg­u­la­tions and ex­emp­tions.

Same- sex mar­riage is now le­gal in the U. S., but some states are still re­fus­ing to is­sue mar­riage li­censes to gay cou­ples, and re­li­gious lead­ers and busi­ness own­ers are won­der­ing what ef­fect the Supreme Court’s rul­ing might have on their prac­tices.

In an in­ter­view, UC Berke­ley law pro­fes­sor Melissa Mur­ray, who spe­cial­izes in fam­ily and con­sti­tu­tional law, ex­plored how those is­sues in­ter­sected with same- sex mar­riage rights.

Same- sex mar­riage is le­gal in all 50 states, but does that mean any­one can get mar­ried within the U. S.?

“It should mean that,” Mur­ray said. “But there’s al­ready been some push­back from a num­ber of states.”

Louisiana is de­lay­ing mar­riage li­censes for same­sex unions un­til the Supreme Court is­sues an of­fi­cial man­date an­nounc­ing that the rul­ing has taken ef­fect. Mis­sis­sippi is­sued three li­censes, then called a halt, say­ing it is wait­ing for the U. S. 5th Cir­cuit Court of Ap­peals to act.

Utah might join the re­sis­tance. A state law­maker has re­port­edly drafted leg­is­la­tion to stop Utah from is­su­ing mar­riage li­censes to any­one — gay or straight.

“You should think of Brown vs. the Board of Ed­u­ca­tion, which de­seg­re­gated schools,” Mur­ray said, re­fer­ring to the 1954 Supreme Court rul­ing that struck down sep­a­rate- bute­qual schools as un­con­sti­tu­tional. “But it ac­tu­ally took years for that to hap­pen be­cause so many South­ern states dragged their feet.”

And same- sex cou­ples might not be able to get mar­ried ev­ery­where; churches, tem­ples and other re­li­gious in­sti­tu­tions could seek ex­emp­tions.

Whether those ex­emp­tions would stand up un­der the Con­sti­tu­tion is un­clear, Mur­ray said, but in states where same- sex mar­riage was al­ready le­gal, most churches and re­li­gious lead­ers re­tained the free­dom to refuse to marry gay cou­ples.

What le­gal stand­ing do Louisiana and Mis­sis­sippi have to de­lay the process?

These states are on un­clear le­gal ground.

“Think about abor­tion,” Mur­ray said. “Women have a right to abor­tion, but the state doesn’t seem to have to fur­nish the abil­ity to have one.”

In­deed, states don’t have to sup­port or fund abor­tion clin­ics even though the Con­sti­tu­tion guar­an­tees women the right to choose to end a preg­nancy.

In other words, even when rights are con­firmed by the Con­sti­tu­tion, states don’t nec­es­sar­ily have to pro­vide av­enues to ex­er­cise those rights. Ac­tively deny­ing those rights or out­law­ing their ex­er­cise is un­con­sti­tu­tional, but states may be able to cir­cum­vent same- sex mar­riages by avoid­ing mar­riage al­to­gether.

Whether states have an obli­ga­tion to fur­nish the mech­a­nisms nec­es­sary to en­ter a mar­riage is un­clear, Mur­ray said. But equally un­clear is the sus­tain­abil­ity of a strat­egy of to­tal avoid­ance, she added.

The gover­nors of Texas and Louisiana hope to stop same- sex mar­riage. What op­tions do they have?

“The Supreme Court is the court of last re­sort on the ques­tion,” Mur­ray said. “Un­less there’s another de­ci­sion re­lated to it, I don’t think they can go back to the courts.”

But a new, re­lated case could spur the courts to clar­ify the ex­tent to which states must fa­cil­i­tate same­sex mar­riage.

Did the Supreme Court leave any room for states to reg­u­late mar­riage in any way?

States ac­tu­ally main­tain plenty of lee­way un­der the Supreme Court rul­ing to reg­u­late mar­riage in­di­vid­u­ally. But no states can out­law same- sex mar­riage, Mur­ray said.

“States can pre­scribe who may marry as long as it is within con­sti­tu­tional bounds,” she said.

She re­called Lov­ing vs. Vir­ginia, the 1967 Supreme Court case that struck down bans on in­ter­ra­cial mar­riage.

Although states could not out­law in­ter­ra­cial unions, they could is­sue a num­ber of re­quire­ments — blood tests, sig­na­tures, fees — for mar­riage li­censes as long as those re­quire­ments didn’t pre­vent cou­ples of dif­fer­ent races from ty­ing the knot.

These same kinds of pro­vi­sions can still be im­posed by states as long as they don’t pre­vent same- sex cou­ples from get­ting mar­ried.

Does ev­ery­one have to per­form same- sex mar­riages, even if they are morally op­posed?

The an­swer to this ques­tion is also un­clear, Mur­ray said. Most states that al­lowed same- sex mar­riages be­fore the rul­ing also pro­vided re­li­gious ex­emp­tions.

The 1st Amend­ment guar­an­tees peo­ple the right to free ex­pres­sion, which could in­clude ex­press­ing ob­jec­tions to same- sex mar­riage by not pro­vid­ing mar­riage ser­vices.

But the ex­tent to which ser­vices can be de­nied and by whom will prob­a­bly de­pend on fu­ture chal­lenges to the law and more court rul­ings, Mur­ray said.

Texas Atty. Gen. Ken Pax­ton, a Repub­li­can, re­leased a non­bind­ing le­gal opin­ion on Sun­day say­ing the 1st Amend­ment’s guar­an­tees of re­li­gious free­dom would al­low county clerks and their em­ploy­ees to de­cline to is­sue mar­riage li­censes to same- sex cou­ples.

In a state­ment, he warned that de­clin­ing to pro­vide li­censes could lead to “lit­i­ga­tion and/ or a fine,” but that “nu­mer­ous lawyers stand ready to as­sist clerks de­fend­ing their re­li­gious be­liefs, in many cases on a pro- bono ba­sis.” What about other peo­ple in the mar­riage busi­ness? Do f lorists and bak­ers have to pro­vide ser vices to same­sex cou­ples?

Again, the ef­fect of the Supreme Court rul­ing is un­clear. Pre­vi­ous chal­lenges in­volv­ing busi­nesses turn­ing away gay cus­tomers who were try­ing to throw a wed­ding have re­sulted in wins for the cou­ples.

Most states faced with this ques­tion have af­firmed in court that it is illegal to deny ser­vices to some­one based on sex­ual ori­en­ta­tion.

Still, Mur­ray says, fu­ture law­suits could inf lu­ence these busi­ness own­ers and cou­ples seek­ing cloth­ing, food and decor for their wed­ding cer­e­monies.

Kent Nishimura Los An­ge­les Times

A WEST HOL­LY­WOOD cel­e­bra­tion of the Supreme Court’s rul­ing Fri­day that le­gal­ized same- sex mar­riage.

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