Does Same-Sex Marriage Law Apply To Prisoners?

When California legalized same-sex marriage a little more than a month ago, the state left things vague for one segment of the population: prison inmates.

What happens when same-sex inmates want to marry each other? It's a problem California prison officials are now trying to figure out.

In the past month, more than 1,500 same-sex marriages have been certified by the county of San Francisco alone. Just north of the city is San Quentin State Prison.

Every year, Lt. Rudy Luna, assistant to the warden, performs more than 200 weddings in the prison's visiting area between male prisoners and women from the outside. Now that same-sex marriages are legal, Luna says the prison's policy is unclear.

"Right now, it says same-sex marriages if someone comes from outside to get married. They haven't set the policy for inmate to inmate," Luna says. "That's not going to be accepted by too many people inside."

Ernest Morgan, who has served 21 years of a life sentence, is considered an unofficial spokesman for the inmates. Sitting on a bench outside his cell block, Morgan says the issue has come up.

"Everybody came to the conclusion that if those two prisoners want to be together, then those two prisoners should have the opportunity to be married and be together," Morgan says. "But we're not sure how the state would stand on that."

But he says he's certain someone is going to give it a try.

"We have no policy that would allow an inmate to marry another inmate," says Terry Thornton of California's Department of Corrections and Rehabilitation.

But Thornton adds that there's no policy that prevents it either: "There's no policy at all."

That's because up until now, it hasn't been an issue. California law prohibits proxy marriages, meaning both parties have to be physically present for a wedding. There aren't any prisons in California housing men and women together.

"So historically, inmates have not been able to marry inmates," Thornton says.

But now, if prisoners in the same prison apply for permission to marry, the California proxy law doesn't apply. State officials are scrambling to come up with a policy. They are concerned about security issues if two inmates marry: What about conjugal visits from one cell to another, and how will the rest of the prison population react?

Those problems will have to be worked out, gay rights activist Eduardo Morales says. He's director of a nonprofit in San Francisco that provides support to gay and bisexual men.

"According to the court, it's a civil right for people of the same sex to marry. So given that, then the rights need to be extended to the prisoners as well," Morales says.

Ultimately, the question of inmate-to-inmate marriage may be decided in court, Morales says.

A number of national gay and lesbian organizations contacted say they won't comment on the issue right now. There is a concern that any focus on the rights of prisoners to same-sex marriage could affect a November ballot initiative in California seeking to ban gay marriage altogether.

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