(Kate Kendell, Executive Director, National Center for Lesbian Rights) 

California’s new law is a cause for celebration for same-sex couples living in and outside the state, because unlike Massachusetts, the first state to legalize same-sex marriage, California has no residency requirement. Any couple who desires can travel to California and marry. Whether a California marriage is recognized in other states is a different question. Only a few states currently recognize same-sex marriages performed elsewhere: Massachusetts, whose laws prohibit anyone from marrying whose home state does not offer equal marriage rights; New York, which does not currently permit same-sex marriage but whose new governor recently directed all state agencies to recognize same-sex marriages performed in other states; and possibly Rhode Island, where Massachusetts marriages are recognized. Some states “convert” same-sex marriages into their own local flavor of domestic partnership, and many ignore same-sex marriages outright. With its constitutional amendment defining marriage as exclusively between “one man and one woman,” Colorado is one of those states.

Last week, Mountain Pride Connections’ editor Kit McChesney interviewed Kate Kendell, Executive Director of the National Center for Lesbian Rights (NCLR), whose organization was lead counsel in four-year legal battle. Representing 15 couples, Equality California, and Our Family Coalition, NCLR’s Legal Director Shannon Price Minter presented and successfully argued the case before the state’s Republican-dominated Supreme Court. The court heard oral arguments in March, and on May 15, delivered their historic opinion.

Mountain Pride Connections: First of all, congratulations on a stunning victory!

Kate Kendell: Thank you! 

MPC: What should Coloradans who marry in California expect upon their return? Are they legally married?

KK:We believe they are married and they should say that they are married. And while many institutions and family members and friends will respect that marriage and honor it, there will be some institutions and governmental actors who will not recognize the marriage.

MPC: And what happens if these marriages aren’t recognized?

KK: Folks need to know that they are going to be in that moment of uncertainty as we work this through, but it is enormously important that prior to simply filing a lawsuit at the very first denial of some recognition, that couples consult particularly with the legal organizations who have made possible this victory in California and who have done decades of work in the LGBT community to get us here.

MPC: A few days before California established the date to commence issuing marriage licenses to same-sex couples, several organizations, among them NCLR, the Human Rights Campaign (HRC), the National Gay and Lesbian Task Force (NGLTF), LambdaLegal, and the ACLU, issued a joint advisory titled “Make Change, Not Lawsuits,” that outlines strategies for encouraging states to grant full marriage equality to all people. NCLR co-authored this document. What is that about?

KK: Cases are not won without very thoughtful and intensive groundwork ahead of time. This is not a time for us to be hot-headed, or rash, or to engage in actions that aren’t thought through, and that don’t have the best legal advice behind them. Too much is at stake, and too many people could suffer for actions that aren’t thoughtful. Check in with the legal organizations. Clearly there will be some lawsuits, but we need to be careful with those, with exactly what those are largely because in some states we do not have sympathetic courts, and once bad law is made it is very difficult to have that law changed. And at the federal level, we do not have a very sympathetic Supreme Court at this point. So any case has the potential of making very bad and long-lasting and negative case law. And it’s our responsibility to be thoughtful.

MPC: It sounds as if the decision to marry is more than personal, and that couples who return to their home states may face serious disappointments when their marriages aren’t recognized. This could cause some serious problems.

KK: Yes. And it is unacceptable that discrimination will go on, and it is appalling that marriages will not be recognized, but it is the state of affairs that we are in right now, and this is the challenge and the responsibility of being in the midst of a civil rights movement while there is great change and while everything is in motion.

MPC: Do California’s LGBT advocates encourage people from other states to come to California to marry? Is same-sex marriage in California good for LGBT people everywhere else? 

KK: I think it is perfectly appropriate for people who understand what the ramifications of marriage are, that marriage should never be entered into lightly--despite the fact that so many people do so all the time--that it should be taken seriously, and after those conversations a couple really wishes to marry, then by all means, they should come to California and get married. But they should just do so with open eyes and an understanding that they are, in some degree, pioneers, and with that, it is important to understand the responsibility and the weight of history that carries.

MPC: The fight isn’t over yet, is it? What about the amendment Californians face this fall?

KK: The big fight now and what we’ve been working on virtually non-stop, even before the court ruling, is beating back the constitutional amendment that will be on the ballot in November intended to ban, forever, the possibility of lesbian and gay people marrying, in California. We are at a very critical crossroads having secured this victory and it is enormously important that we maintain it, and even had we not won this victory with the court, we would face this amendment. The stakes just don’t get any higher than this.

MPC: Friends here in Colorado who fought hard against Amendment 2 are already discussing how they can offer help to California, that the battle crosses state lines, and is gravely significant to all LGBT people.

KK: Yes, and I think that if we were to beat this back in California, we would drive a stake through the heart of the far right and of the most virulent anti-gay opponents we face. I think we can definitely win in November, and have a majority of folks voting against the amendment, but it will take a huge, huge fight. No constitutional that has been proposed that deals with marriage only, as this one does, has ever been defeated at the ballot box, but no state has ever faced such an amendment, having won such an important court victory. So there’s no doubt we’ve seen a sea change in public attitudes and there is no doubt we can win, but no one can be complacent, or sanguine, about that possibility. It will take enormous amounts of money, personal resources, volunteer time ... it will take everything we’ve got.

MPC: How does full marriage equality affect all the other important concerns that affect LGBT people, such as custody rights, immigration, healthcare, employment, transgender rights, and other issues that NCLR and other legal and political organizations have been working on so hard for so many years? Does this ruling have any effect on those concerns?

KK: This is the real beauty of the California court decision. Yes, it’s important for couples who want to marry, and that is such a culturally significant way that we express our love for another person, and our commitment to them. It is simply not sustainable for lesbian and gay people to be excluded from that and yet still have any kind of equality or fairness or opportunity. But beyond that, the ruling is so expansive and so protective, and California is such a huge state with so many people and so many people who have come from other places and so many people living here who know people in other places, that the ripple effect on every issue that we care about, whether it is the right for youth to be safe in schools, or for immigrants to gain asylum, or older lesbian and gay folks to feel safe in assisted living facilities, this changes everything. And it is such an enormous step forward in every area and arena of our work, and in the lives of LGBT people. I do not believe that there is any aspect of LGBT life that won’t be positively impacted by what’s happened in California, assuming, of course, that we can keep it an maintain it. And given the expansiveness of the ruling, and the potential it has to ignite a sea change in this country, losing is not an option in November because the setbacks to everything we care about, and the revitalization of the anti-gay establishment would be part of the consequences, and that is just unthinkable.

MPC: Thank you, Kate. And thank you for everything you do.