California high court will rule on same-sex marriage dispute

Photo(s) by Luke Thomas

By Julia Cheever, Bay City News Service

December 20, 2006

The California Supreme Court agreed yesterday to decide whether same-sex couples have a constitutional right to marry in the Golden State.

All seven justices of the court signed an order, filed in San Francisco, agreeing to review an October appeals court decision that upheld state laws requiring marriage to be between a man and a woman.

No date has been set yet for a hearing on the case. Briefs in the case are due by this spring.

The court will consider a total of six consolidated cases: four filed by the city of San Francisco and 19 same-sex couples seeking the right to marry, and two filed by traditional values groups opposing such a right.

Although the court grants review of only a small percentage of the cases appealed to it, its decision to take up the marriage cases was not a surprise.

The review was sought not only by same-sex marriage supporters, but also, in an unusual move, by California Attorney General Bill Lockyer, who won the lower court decision.

Lockyer, who has defended the state marriage laws, filed a brief earlier this month urging that a decision by the state's highest court was needed to provide "finality and certainty for the citizens of California.''

Lockyer spokesman Tom Dresslar said yesterday, "Californians need and deserve clarity on this issue as soon as possible. People of this state have rightly expected all along that clarity would be provided by the state Supreme Court.''

Shannon Minter, legal director of the National Center for Lesbian Rights, said, "We are delighted that the court ruled so quickly and unanimously to grant review.

"We are very hopeful the court will stand up for basic fairness and bring an end to the current ban on marriage for an entire group of Californians,'' Minter said. The attorney represents 11 gay and lesbian couples who filed one of the lawsuits before the court.

San Francisco City Attorney Dennis Herrera said, "Marriage equality is the major civil rights issue of our time, and the state's highest court clearly recognizes it should have the final word on the issue in California.''

But Glen Lavy, a lawyer for a group opposing same-sex marriage, said, "We hope the court will recognize that it is valid to define marriage as between a man and a woman. That is what marriage has always meant in California.''

Lavy, a lawyer with the Arizona-based Alliance Defense Fund, represents the Proposition 22 Legal Defense and Education Fund.

Proposition 22, passed by state voters in 2000, is one of several California laws defining marriage as being between a man and a woman.

Lavy said, "The people of California spoke in 2000, and the people's voice should be heard. Political special interests shouldn't trump their voice regarding what's in the best interests of families and children.''

Minter estimated that the state Supreme Court could hear arguments on the cases as soon as the summer or fall of 2007. A written ruling from the court will be due 90 days after a hearing.

Same-sex marriage supporters contend the California constitution's guarantees of equal protection, due process and privacy provide a right to marriage.

In opposition, Lockyer has argued it is reasonable for the state to limit marriage to heterosexual couples while giving same-sex couples the same rights and protections through domestic partnerships.

The Proposition 22 group and the Campaign for California Families take the opposing arguments a step farther and say that marriage between a man and a woman is better for children.

The six cases stem from the legal battle over San Francisco's short-lived stint of granting same-sex marriage licenses in 2004.

The city issued about 4,000 licenses between Feb. 12 and March 11, 2004, when the state Supreme Court halted the practice on grounds of an administrative law issue.

But the high court said at the same time that the broader constitutional question could be raised in Superior Court lawsuits, which were then filed by the city of San Francisco and gay and lesbian couples.

In March 2005, San Francisco Superior Court Judge Richard Kramer ruled that there is a state constitutional right to same-sex marriage.

But a Court of Appeal panel in San Francisco overturned that decision on Oct. 5 by a 2-1 vote.

The court majority said the Legislature and voters had a rational basis for restricting marriage to heterosexual couples while at the same time giving same-sex couples equal benefits through the state's domestic partnership system.

Justice William McGuinness wrote in that ruling, "Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage.''

Copyright © 2006 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

####