By Julia Cheever
March 2, 2008
One gay rights group appearing before the California Supreme Court in historic marriage arguments on Tuesday has told the court that “the freedom to marry the person of one’s choice is an essential aspect of human dignity.”
A traditional-values group on the other side, meanwhile, has argued that the bid for same sex marriage is “a ticking bomb aimed at demolishing the very institution to which plaintiffs claim to seek admission.”
The arguments filed by the National Center for Lesbian Rights on one side and the Campaign for California Families on the other represent two out of eight parties in the case.
The state high court will hold a rare three-hour hearing at the State Building in San Francisco on Tuesday to hear arguments from all eight groups – four in favor and four opposed – on whether the state constitution provides a right to same-sex marriage.
Court spokeswoman Lynn Holton said the hearing is the longest in recent memory for the court, which normally allots only one hour for arguments in a case.
A written ruling by the court’s seven justices will be due in three months.
Because the arguments are centered on the California constitution, the state Supreme Court will have the final word on the validity of California laws requiring marriage to be between a man and a woman.
The groups arguing in favor of same-sex marriage are the city of San Francisco and three sets of a total of 19 same-sex couples. One set of 11 Northern California couples is represented by the San Francisco-based National Center for Lesbian Rights.
Those groups contend that a right to same-sex marriage is provided by the state constitution’s guarantees of equal treatment, privacy and a fundamental right to marry.
Lawyers from the city of San Francisco wrote that excluding same-sex couples from marriage “not only stigmatizes lesbian and gay men but fosters discrimination against them and their families.”
On the other side, the state marriage laws will be defended by lawyers representing California Attorney General Jerry Brown, Gov. Arnold Schwarzenegger, the Campaign for California Families and the Proposition 22 Legal Defense and Education Fund.
Brown and Schwarzenegger have argued that heterosexual marriage is deeply rooted in tradition and that same-sex couples are given nearly the same rights through domestic partnerships.
Brown cautioned in a brief filed last year that courts should “avoid the social risk inherent in overly rapid change that rends the fabric of society in ways that cannot be rapidly assimilated and that may prompt backlash reactions.”
The two traditional-values groups appearing before the court go a step further and contend that marriage between a man and a woman is better for children.
“Fostering and preserving responsible procreation remains a key state interest in defining marriage as the union of one man and one woman,” attorneys wrote in a brief filed by the Campaign for California Families.
In addition to the eight official parties, 43 other groups have filed friend-of-the-court briefs representing dozens of law professors, civil rights groups, psychology associations, cities and counties, and religious organizations weighing in both for and against gay marriage.
The case began four years ago when the city of San Francisco began issuing marriage licenses in February 2004 on the instructions of Mayor Gavin Newsom.
After the city granted about 4,000 licenses in four weeks, the state Supreme Court, ruling in a lawsuit filed by then-Attorney General Bill Lockyer, halted the practice and later ruled the city had no authority to issue the licenses and that they were invalid.
But the high court said it was willing to allow separate proceedings to test the constitutionality of the state marriage laws.
Eventually, six lawsuits were filed — four by the city of San Francisco and the three sets of same-sex couples and two by the groups opposing same-sex marriage. The state attorney general’s office and governor became parties to defend the state laws.
State laws requiring marriage to be between a man and a woman include a measure passed by the Legislature in 1977 and a ballot initiative, Proposition 22, enacted by voters in 2000.
A San Francisco Superior Court judge struck down the laws in 2005. But in 2006, a state appeals court in San Francisco overturned that decision by a 2-1 vote.
The appeals court majority said the Legislature and voters had a rational basis for restricting marriage to opposite-sex couples while at the same time giving same-sex couples nearly equal benefits through the state’s domestic partnership system.
While the state high court has the final word on measuring the laws against the California constitution, another chapter in the case could be provided by voter initiatives now being circulated by same-sex marriage opponents for the November ballot.
The proposed initiatives would make the opposite-sex marriage requirement part of the state constitution. One measure would also eliminate domestic partnership rights.